Commercial Texting Best Practices Toolkit

Commercial Texting Best Practices

•    Best practices are the ways that businesses like yours can send texts to current or potential customers, that are aligned with key requirements under the commercial texting laws. 

•    The laws are regularly changing and these best practices don’t consider every possible scenario, and so we recommend that you familiar yourself with commercial texting requirements and get help as needed. 

•    Best practices for commercial texting can be categorized into 8 areas. We have broken them out as sections in this document for easy reference.

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Best Practice: The Basics

There are some golden rules of commercial texting that your business should keep top of mind:

Know the Rules

• Be familiar with the federal and state commercial texting laws that affect your business. 
• The major commercial texting laws are the TCPA, TSR and state-level “mini-TCPAs”.
• Take extra care when you are sending sales-related information. There are more rules and best practices that apply when you do.

Go with Who You Know

• Err on the side of sending texts to only your customers. 
• This avoids surprise, lowers the risk of angering the text recipient, and helps to stay within limits under some commercial texting laws.

Be Honest

• Give accurate and enough information in texts at all times.
• Don’t try to dress up a sales text like an informational text. People know when you are trying to pitch a product or service and your business is expected to follow the rules when texting about sales or promotions.

 Best Practice: Texting Windows

• Your business cannot text mobile users at all times of day. The TCPA and many states limit the times that your business can text customers or potential customers. We refer to these time slots when businesses can send sales-related texts as “texting windows”.
• Under federal law or the TCPA, businesses may only send sales-related texts (SRTs) between 8:00 a.m. and 9:00 p.m. No matter what state your customers are in, you should not send sales-related texts outside of this window.
• There are a number of states with more strict texting windows. Your business must also follow the strictest texting window that applies in the state your business is in and the states to which you are sending the text.  
• You can base your determination of the state the text recipient is in upon the area code of their mobile number and use the time zone applicable to that area code. Remember that there is more than one time zone in some states. 
• A business that texts individuals in multiple states should follow the strictest texting window that applies across all states. This avoids overlooking a particular state requirement and simplifies your process. The current, most strict texting window across all states is Monday to Friday, 10:00 a.m. to 6:00 p.m., Saturday, 10:00 a.m. to 5:00 p.m., and not on Sundays and national holidays.
• The texting window limitations generally apply to sales and promotion related texts. However, you should avoid sending even informational texts outside of that window when possible to improve the customer experience. We don’t know many folks who want to get a text from a business at 10:00PM or 4:00AM!

Best Practice: Do Not Call List

• The FTC’s Telemarketing Sales Rule created a national Do Not Call Registry to give people a way to “register” their phone number and prevent telemarking calls to their homes. The TSR also applies to text messages to mobile phones. Many states also have a separate DNC list.
• You cannot send an SRT to a phone number on the national and applicable state DNC lists with few exceptions. For example, you can send the text if:
  • The mobile user gave your business written consent to send sales-related texts to her and has not opted out of receiving texts; or
  • Your business has an established business relationship with the mobile user, meaning she made a purchase from your business within the last 18 months or made an inquiry of your business in the last 3 months.
• Textel does not compare your mobile user phone lists to the national or state DNC lists and so before you send an SRT your business needs to confirm you have the mobile users prior written consent, has an established business relationship with your company, or confirm the number is not on applicable DNC lists. 
• We think it makes sense to get a mobile user’s prior written consent before ever sending an SRT to that number. See the CONSENT process in this Toolkit. 
  • Textel helps to manage getting and keeping a record of this consent through its platform. 
  • On the other hand, subscribing to and using DNC lists can be expensive and time-consuming and it can be administratively challenging to monitor whether there is an established business relationship with each mobile user. 
• Remember, if your business has a mobile user’s written consent before you send an SRT and the mobile user has not opted out of getting sales-related texts from your business, you do not need to also check the DNC lists.
• If you learn that a mobile number has been reassigned to another user, you cannot sent an SRT to the new user until you have their written consent to receive sales-related texts.

Best Practice: Caller ID

• Under the TSR and some states’ laws, you are required to include the NAME OF YOUR BUSINESS and HOW THE MOBILE USER CAN CONTACT YOUR BUSINESS in an SRT.
• You don’t have to list an employee’s name with your business name, but you can do this where it makes sense for your business. This can improve the customer experience.
• You can choose how you want text recipients to contact your business so long as the method is one that works without a lot of hassle. For example, you may want to ask the mobile user to text you with any questions if you are sending a text to only that mobile user. If you are sending a text to a lot of mobile users, then you will need to provide a phone number or email address for them to use if they have questions. 
• Even though the TSR requires identification of your business name and way to contact you for sales-related messages, it is a best practice to include this information in any text. 
• We believe that customers are more comfortable receiving texts from businesses if they are certain of who is sending it. The last thing you want is for one of your customers to be confused about a text from you or to think they are getting spammed. 
• Including this information also helps to ensure you are following the rules if an informational text conversation turns into conversation about a sale, in which event you have to include your business name and contact information.
• Bottom line, include your name and contact information every time you send a new text.

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Best Practice: Consent

• Some states and the TSR require prior written consent from a mobile user before sending a sales-related text.
• It is a best practice to get written consent before sending any texts related to your business, whether sales-related or not. Many people don’t want to be blindsided with a business text about discount offers or information about their next appointment. 
• Here are the three steps to getting consent in a way that is consistent with commercial texting laws and helps ensure a good customer experience.

1. Get at least verbal permission before you send the first text.
   1. Ask your customers if you can send texts to them, either at the point of sale, over the phone, or through a web form on your business’s website, before you start sending appointment reminders and other texts
   2. Keep a contact list and record their mobile number and when you received it
   3. You can start sending informational texts, but don’t send a sales-related text until you have their written consent
2. Request written consent to send sales-related information by text. Always include the following in your text asking for consent:
   1. the frequency of texts, if there will be multiple texts
   2. the purpose of the texts
   3. the name and contact information of the business
   4. instructions on how to agree to receive sales-related texts
   5. instructions on how to opt out of receiving future texts
   6. indication that message and data rates from the recipient’s phone carrier may apply (though most texting plans allow unlimited texting and don’t charge a fee)
3. Get the Consent and Confirm Receipt. If the mobile user replies to your request with a Yes, Y or other keyword that you gave them to opt in to receiving texts, send a confirmatory text so that everyone is on the same page. 

• Don’t text more than you allowed by the consent. For example, if consent was obtained to send text messages to a number related to “Black Friday Sales”, then the business should not send text messages related to “Labor Day Sales” unless getting prior, written consent to send messages related to all sales or “Labor Day Sales”.

Best Practice: Opting Out

• The TSR and some states require businesses to give an individual the option of stopping or opting out of the receipt of sales-related text messages at any time. Make it your practice to text recipients a way of opting out every time you send a new text. It’s as simple as stating “Txt STOP to cancel” at the end of each new text you create. 
• You cannot send a sales-related text – and probably should not send any text – to someone who has opted out of receiving texts from your business.
  • Keep accurate records of who has opted out
  • Get a new written consent before sending an SRT to a mobile user who has opted out
• If you obtained consent through text, you should allow mobile users to opt out using text.
• You should also let mobile users opt out of receiving texts from you by other means, like verbally telling you or emailing your business that they want to opt out, even if they originally consented by text. 
  • Keep a written record of these requests and implement them right away. 
  • You can submit these opt outs that happen outside of text to Textel, and we will update your data to show their opt out status. 
• Make the opt out process easy for folks. Either they want to hear more about your business and have the convenience of appointment reminders or sales updates, or they do not. If they do not, you don’t want to anger them or strain the relationship by making it difficult for them to opt out. You want to make a good impression and build good relationships with prospective customers, even if they don’t want to get texts from you at that time.
  • Allow mobile users to opt out by text using a variety of key words, like STOP, STP, CANCEL, or OPT OUT.
  • Allow someone to opt out even if there is a typo. If someone texts “STOL” instead of “STOP”, our tools are set up to help you recognize typos like “STOL” as STOP and their text will be treated as an opt out. 

Best Practice: Written Disclosures

• Business are expected to be accurate and clear in their communications with people about sales and promotions. The government and plenty of consumers frown on business that try to “pull a fast one” and leave out important information or flat out misstate facts. You need to be honest and accurate in your texts with mobile users.
• There are some specific requirements about the contents of sales-related communications. Under the TSR and some states’ mini-TCPAs, businesses are required to conspicuously include in any sales-related call or text:
  • purpose of the text
  • “material facts” related to the sale or promotion
• “Material facts” include information that a consumer would reasonably need to make an informed decision about whether to buy your product or service. Examples of material facts are price of the product or service (including all fees), an accurate description of what the person is buying, and quantity.  
• If sending out a text about a campaign or call to action, make sure you have written consent first and include:
  • name of your business
  • description of the program
  • phone number from which texts will originate if the individual chooses to respond
  • key terms and conditions
  • any fees for participating
  • how to opt in to the program
  • contact information for customer care or questions
• If you don’t have consent to send SRTs, you can advertise a campaign or call-to-action on your website or a poster at the POS. Follow the consent best practices and send a text to anyone who texts your business about the campaign, to get their consent before sending sales-related information.
• Be familiar with the state and local telemarketing rules in your state. There may be other limits on sales-related texts or licensing requirements if you are using a telemarketer, for instance. 
• It is also an emerging best practice to direct mobile users to a written privacy policy that you maintain on your website or elsewhere and informs the mobile user how you handle their personal information. Consider telling text recipients how to find that policy when texting about campaigns or when you first get their consent to send SRTs.

Example Texts with Written Disclosures

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Best Practice: Record Keeping

• The TCPA requires your businesses to keep records of sales-related texts for at least four years. These records include the content of the texts, mobile numbers to which the texts were sent and the date and time they were sent. 
  • Good news! Textel retains this information for you if you are using the Textel Conversations or Textel Blast tools. 
• You should also keep all records showing mobile user consent to receive texts from your business and all opt-out records. This includes the text content, the mobile user number, and date and time of texts sent and received. If there is ever a question about whether you should have sent an SRT to a mobile user, records showing consent and no opt-out by that mobile user is very helpful.
  • More good news! Textel retains your text messages showing consent or opt-in and opt-outs if you use Textel Conversations or Textel Blast tools to get consent or opt-out texts. 
  • If you did not use those tools to obtain and track consent and any opt-outs, keep all electronic and paper records you have of these interactions.
• It is a good business practice to also keep your contact lists, even if you uploaded them to our platform, and copies of any texts you send outside of the Textel tools. 

Frequently Asked Questions

As part of this Toolkit we wanted to provide an easy to reference FAQs section. For readability, we have posted the Frequently Asked Questions to their own page. You can find them here.

Glossary

Some of the key terms and acronyms in the Toolkit are listed here with their meaning as used in the Toolkit.

Commercial Texting Laws

The TCPA, TSR, and state-level Mini-TCPA laws. 

Do Not Call (or DNC) Registry

The list that is maintained by the Federal Trade Commission (FTC) and includes the phone numbers of land line and mobile phone users who have registered their numbers with the FTC to avoid getting telemarketing calls. Many states maintain their own DNC lists that are different from the national DNC Registry.

Mini-TCPA Laws

Means state-level laws that restrict certain calls, texts and faxes, such as the Florida Consumer Protection Law and the Florida Telemarketing Act. The number of states with TCPA-like laws is growing every year. Florida is one example. We think it is important for you to understand the TCPA and telemarketing requirements that exist in your state and the states to which you market your products or services. 

Sales-Related Text or SRT

Means sales-related texts are texts that provide, offer to provide, or arrange to provide goods or services to consumers in return for some type of payment.

TCPA

Means the federal Telephone Consumer Protection Act (TCPA), a federal law enforced by the Federal Communications Commission and limits when businesses can call and text about sales and promotions.

Textel Toolkit

Means the Commercial Texting Best Practices, FAQs and Glossary that have been shared by Textel to help its customers to send best-in-class text messages. 

TSR

Means the Telemarketing Sales Rule (TSR) of the Federal Trade Commission, which regulates telemarketing activity.