Complying with SMS Marketing Regulations in the US

This information is not legal advice. While we do our best to provide useful information as a starting point, Yotpo SMS & Email advises all merchants to obtain professional legal advice to ensure that all marketing campaigns are sent in full compliance with all applicable laws. 

If you are one of the many merchants sending SMS marketing messages to US shoppers, you must familiarize yourself with the local regulations and comply with them. All SMS & Email users can easily adhere to these regulations by following a couple of simple and intuitive steps.

The following article will introduce you to the key takeaways of the main guideline sources for SMS marketing in the US - the TCPA regulations and CTIA best practices, as well as some local state rules and how we help you comply with them at all times.

Understanding the TCPA and CTIA

TCPA is an acronym for the Telephone Consumer Protection Act. It is a federal law that covers the use of automated telephone communications - including phone calls, voicemails, fax machines, and text messages. It clearly defines spam text messages as an “unsolicited advertisement transmitted to any person without that person's prior express invitation or permission, in writing or otherwise” and deems them illegal. Sending these can result in fines up to $1,500 per violation. 

The CTIA stands for the Cellular Telecommunications Industry Association. It is an association created by key stakeholders in the telecommunications industry (i.e., mobile network operators) that serves, among other things, as a gatekeeper between advertisers and end-users. The CTIA is not a legal authority, and you cannot be sued for not following its guidelines, but there can be other consequences for violating them. You can be reported or flagged by the mobile carriers, which may shut down or suspend your SMS marketing campaigns to your customers.  CTIA guidelines also regulate messages that contain content related to sex, hate, alcohol, firearms, or tobacco (SHAFT).

How to stay TCPA & CTIA compliant

Before sending marketing messages to US consumers, you must: 

• Obtain consent. 
• Conspicuously explain what the shopper is subscribing to.
• Include a free and available opt-out mechanism at all times.
• Comply with quiet hours restrictions.
• Comply with abandoned checkout reminder regulations.

How to get consent

Shoppers must explicitly agree to receive promotional text marketing messages from you. When collecting phone numbers on your website, through a pop-up or another subscriber collection method, you must clearly state that the individual agrees to receive recurring marketing messages, including abandoned checkout reminders, at the mobile phone number they provide. You must mention that consent is not a condition of any purchase and provide links to your Terms of Service and Privacy Policy. 

A consumer opt-in to receive messages should not be transferable or assignable, and message senders should not use opt-in lists that have been rented, sold, or shared.

With Yotpo SMS & Email, this is done at your store’s checkout or via our various subscriber collection tools. All of them are built-in for compliance with all legal regulations and include the required legal verbiage. 

How to provide an opt-out method

CTIA and carrier guidelines require you to occasionally include in your text messages clear instructions on how to opt out, like the STOP to opt out verbiage. Some carriers ask that you do it once a month, while others - every five messages; we recommend including it every time to avoid oversight and possible sanctions. 

It is important to remember that opting out must be free and available at all times. When you use Yotpo SMS & Email, even if your message doesn’t include verbiage such as “STOP to opt out,” a customer that replies “STOP” will be unsubscribed.

How to respect quiet hours 

Quiet hours are specific times during the day when you should avoid sending text messages to your subscribers (e.g., early in the morning, late at night). 

Users can easily set up SMS Quiet hours from the app.

1. In your Yotpo SMS & Email main menu, go to Settings > General Settings > Compliance tab.
2. In the SMS Quiet hours section, enable the feature from the Status drop-down menu and then select the start and the end of the quiet hours period.

The TCPA prohibits sending text messages anytime after 9 PM and before 8 AM in the recipient's time zone, but certain states have more restrictive rules, such as Florida - between 8 PM and 8 AM. 

When to send abandoned checkout reminders

Abandoned Checkout Reminders are automated text messages sent by eCommerce merchants to shoppers who have left items in their online carts at checkout but haven’t completed their purchase. The regulations in the US on Abandoned Checkout Reminders are stricter, and on top of the other regulations, merchants must: 

• Limit their Abandoned Checkout Reminders to 1 per shopping event.
• Send the Abandoned Checkout Reminder within 48 hours after the shopping cart was abandoned.

When activating abandoned checkout automation or flow, you will get the following warning:

It serves as a reminder that to comply with the CTIA regulations, when sending an abandoned checkout reminder to US shoppers, merchants are allowed to send just 1 message within 48 hours of checkout, including opt-out verbiage.

Additional state laws

The states that have issued new regulations, or amended their existing regulations concerning SMS marketing since July 2021 are Florida, Oklahoma, New York, Washington, Mississippi, Tennessee, New Jersey, and Maryland.  Violations of these regulations could result in civil fines, private rights of action, and loss of access to intermediary communication platforms. If we were to focus on the key differences between the majority of these state bills and the federal TCPA regulations, we’d see that there are important changes in the definition of quiet hours, and in the number of permissible messages within a 24-hour period:

• Quiet hours are slightly longer than the federal TCPA. According to the TCPA, marketers are not to send messages to subscribers between 9 PM and 8 AM. In the state bills of Florida, Oklahoma, Washington, Mississippi, and Maryland, this definition has been extended by 1 hour. According to these bills, marketers are not to send messages to subscribers between 8 PM and 8 AM. The Mississippi bill goes even further, stating that no messages should be sent on Sundays.
• The federal TCPA does not discuss a message limit to which marketers should adhere to. However, according to the bills of Florida, Oklahoma, and Maryland, marketers should send no more than 3 messages per subscriber in a 24-hour period. 

Now, you might tell yourself, “I don’t care about subscribers in Mississippi or Florida, I’ll just remove them from my subscribers list”. The bad news is that not only will this drop your subscriber count and your SMS channel revenue, but it will not help you dodge these regulations. All the bills from the above-mentioned states cover both recipients from those states, but also recipients that are physically in these states when receiving a message. Therefore, the simple action item from this article for any merchant with American subscribers is to adhere to the above-mentioned changes:

1. Define your quiet hours settings to 8 PM until 8 AM.
2. Don’t schedule campaigns on Sundays.
3. Define your smart-sending configuration to no more than 3 messages in 24 hours.

Here is a table summarizing the above information: