New FCC Rules On Texting and Email under the CAN-SPAM Act

New federal regulations went into effect October 16, 2013 regarding promotional texts. Marketers must obtain written consent from consumers before they can send text messages or launch robocalls. Previously it was OK as long as there was a relationship.

Federal rules require the following for commercial email sent to your mobile phone:

  • Identification – The email must be clearly identified as a solicitation or advertisement for products or services;
  • Opt-Out – The email must provide easily-accessible, legitimate, and free ways for you to reject future messages from that sender;
  • Return Address – The email must contain legitimate return email addresses, as well as the sender’s postal address.

fcc logoSpam: Unwanted Text Messages and Email

Background

Many consumers find unwanted texts and email – which can include commercial messages known as spam – annoying and time-consuming. And unwanted texts to mobile phones and other mobile devices can be intrusive and costly. Two laws – the Telephone Consumer Protection Act (TCPA) and the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act – address spam.

Unwanted Texts and the Telephone Consumer Protection Act

The TCPA and the FCC’s rules ban many text messages sent to a mobile phone using an autodialer. These texts are banned unless (1) you previously gave consent to receive the message or (2) the message is sent for emergency purposes. This ban applies even if you have not placed your mobile phone number on the national Do-Not-Call list of numbers telemarketers must not call.

Unwanted Texts and Email under the CAN-SPAM Act

The CAN-SPAM Act supplements the consumer protections provided by the TCPA. The CAN-SPAM law bans unwanted email messages sent to your mobile phone if they are “commercial messages.” (Email messages can sometimes appear as texts on your mobile phone, depending on how they’re addressed.)

The CAN-SPAM Act defines commercial messages as those that primarily advertise or promote a commercial product or service. The FCC’s ban does not cover “transactional or relationship” messages — that is, notices to facilitate a transaction you have already agreed to — for example, messages that provide information about your existing account or warranty information about a product you’ve purchased. The FCC’s ban also does not cover non-commercial messages, such as messages about candidates for public office, or email messages that you have forwarded from your computer to your wireless device (but read below about the FTC’s rules that may restrict such messages).

Federal rules require the following for commercial email sent to your mobile phone:

  • Identification – The email must be clearly identified as a solicitation or advertisement for products or services;
  • Opt-Out – The email must provide easily-accessible, legitimate, and free ways for you to reject future messages from that sender;
  • Return Address – The email must contain legitimate return email addresses, as well as the sender’s postal address.

Giving Your Consent

Under the FCC’s rules, texts and commercial email messages may be sent to your mobile phone if you previously agreed to receive them. For texts that are commercial, your consent must be in writing (for example, in an email or letter); for non-commercial, informational texts (such as such as those by or on behalf of tax-exempt non-profit organizations, those for political purposes, and other noncommercial purposes, such as school closings) your consent may be oral.

For commercial email, your consent may be oral or written. Senders must tell you the name of the entity that will be sending the messages and, if different, the name of the entity advertising products or services. All commercial email messages sent to you after you’ve given your authorization must allow you to revoke your authorization, or “opt out” of receiving future messages. You must be allowed to opt out the same way you “opted in,” including by dialing a short code. Senders have 10 days to honor requests to opt out.