Text Messaging FAQ: Legal and Regulatory Considerations

Written by Kyle Claypool • August 2, 2021
Mudshare

There are a lot of new developments in text messaging, both for businesses and political campaigns. We’ve been fielding a lot of great questions about regulations and compliance recently, so we wanted to summarize them for everyone else:

What bodies and laws regulate text message marketing, telemarketing, etc.?

The Federal Communications Commission (FCC) regulates the industry, primarily under the Telephone Consumer Protection Act (TCPA). Entities that violate the TCPA may face legal action.

The Cellular Telecommunications Industry Association (CTIA) sets certain standards for activities on their networks to preserve the reliability and quality of their service. Entities that violate CTIA regulations may have their numbers blocked or face throttling or other issues delivering messages.

What are A2P and P2P messaging? Which should be used when?

First, basic definition of terms…

  • A2P = Application-to-person messaging
  • P2P = Person-to-person messaging

As far as the mobile networks are concerned, any SMS or MMS message that’s not sent directly from one consumer to another is considered A2P.

The more important distinction is how different types of messages are treated for legal compliance reasons. There’s some nuance here, but think of it this way: 

Any message that is completely automated is generally considered A2P. Appointment reminders and one-way message blasts to opted-in lists are generally automated A2P messages.

If you want to send messages to large groups without explicit opt-in or if you want to allow for two-way communication, you should be using P2P messaging.

For more information on how the FCC views MudShare’s technology, P2P messaging, and TCPA, read the Supreme Court’s June 2020 declaratory ruling or this slightly less dense interpretation: Major TCPA Updates with Implications for Political Callers: FCC Weighs In on P2P Texting Platforms; Supreme Court Invalidates Narrow TCPA Exception and Agrees to Consider ‘Autodialer’ Definition

Can an organization legally send text messages to consumers who have not opted in to receive messages?

As long as you are using a P2P messaging platform, sending SMS/MMS messages with or without opt-in is 100% compliant with all current FCC and TCPA regulations.

Carrier best practices recommend that businesses should ask consumers to opt in to receive promotional messaging, and that all messaging include clear “opt-out” language.

Is MudShare’s platform TCPA compliant?

Yes.

What can impact sending/deliverability of text message campaigns?

  • Shortened URLs – Carriers are biased against messages containing shortlinks (i.e. bit.ly) due to spam and abuse. This can cause messages to be flagged. However, that issue should improve with 10DLC rollout, as trust scoring will be based on the registered sender. If you’re a trusted sender, shortened URLs should be less of a problem.
  • SHAFT (sex, hate, alcohol, tobacco, firearms-related messages). If you’re sending messages on these topics, you’re far more likely to get flagged.
  • Sending outside of your approved/specified forms of content. If your 10DLC registration specifies that you’re sending appointment reminders but you’re sending pharma ads, you’re likely to run into problems.
  • Sending outside of local time windows. See above TCPA and CTIA best practices.
  • Sending to large lists without scrubbing the numbers. For instance, if you’re attempting to send texts to disconnected, invalid, or landline numbers, you may encounter problems. (Note: MudShare scrubs contact lists before sending to ensure your list contains valid mobile numbers)
  • Persistent spamming. If CTIA deems that you send a lot of “Unwanted Messages,” deliverability is going to plummet.

Does CANSPAM apply to sending SMS messages?

No. CANSPAM legislation applies only to email.

What do clients need to do to ensure their use of MudShare is compliant with TCPA and CTIA best practices?

What is 10DLC and how is it changing SMS/MMS messaging?

10DLC, or 10-Digit Long Code, is a new system being rolled out by mobile carriers for delivering Application-to-Person (A2P) messages to US consumers via standard 10-digit phone numbers. 

The primary intent of 10DLC is to reduce the spread of spam messaging to consumers while improving deliverability for trustworthy senders. If your organization sends any volume of SMS or MMS messages to consumers, you will need to register for 10DLC.

Senders will need to register a business and describe their campaigns or use cases for sending messages. Sending A2P messages from an unregistered number or outside of the specified use cases may result in blocked messages or fines from the carriers.

What are the pros and cons of the 10DLC registration?

Pros:

  • Registered brands in good standing will be able to send more messages using fewer numbers. This will simplify some aspects of large-scale texting campaigns.
  • Brands in good standing will be less likely to have messages blocked for being “potentially suspicious.” We expect things like shortened URLs (i.e. bit.ly/example123) will be allowed, whereas now they may cause your message to be blocked.
  • Spammers and less-reputable businesses will be throttled and potentially shut down. Businesses will be given a Brand Score that will determine maximum messaging volume.

Cons:

  • Thus far, the details and timelines on the registration process have been unclear and hard to pin down. That will be a one-time headache, though.
  • Carriers have added messaging surcharges that average out to $0.005 and $0.01 per SMS and MMS message sent, respectively.
  • There may also be a registration fee (under $100, from what we’ve seen) and monthly fee ($5-10/month, depending on use case).
  • Nobody likes additional paperwork and regulation.

When will 10DLC registration (and penalties for non-registration) go into effect?

The registration process has already begun, but timelines and deadlines have moved several times. Large brands and high-volume senders are being prioritized in a phased rollout. 

As of August 1, 2021, we still do not have a set timeline for registration, but MudShare will ensure that clients are able to register as soon as possible. We will keep clients posted as we learn more.

Will we still be able to use shortcodes?

Shortcodes can still be used for inbound messaging (i.e. “Text TACOS to 654321 for a chance to win free tacos!”).

The use of shared shortcodes for sending messages is being phased out. It’s still possible to register your own dedicated shortcode for outbound messaging. However, with a registration cost of roughly $1,000/month, most businesses won’t see it as worthwhile compared to a nearly zero-cost 10DLC number.

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