July 20, 2023
Reading Time: 5 minutes
We consider ourselves a vested partner in our customer’s success—which is why we strive to communicate both product enhancements and greater industry changes to our brands as quickly as possible. And when it comes to compliance, the rules and regulations continue to change at a rapid pace.
If you’re a brand that uses a compliance-forward SMS provider like Postscript, where these compliance guardrails are built in, you don’t need to spend a lot of time stressing about the specific details of your program. Luckily for you, we’re constantly on top of any changes that might affect our customers, so they can rest easy knowing you have the tools and latest compliance updates to be sending texts compliantly.
In the absence of clear federal standards, we’ve continued to see more state driven regulations. Recently, several major changes to SMS regulations at the state level have come out. Here’s what you need to know.
Updates to Florida Telephone Solicitation Act (FTSA)
Originally passed in July 2021, the FTSA is essentially just Florida’s state-specific version of the TCPA that regulates calls and text messages to Florida residents, with some additional restrictions and penalties for violations including:
Longer quiet hours (reducing waking hours to 8am to 8pm local time)
More restrictions on what messages are allowed during quiet hours
Limit of 3 messages within 24 hours for a specific campaign or product.
Florida has largely dominated SMS compliance conversations because consumers have a private right of action, which allows them to directly sue companies they believe are in violation of FTSA regulations. As a result, brands messaging subscribers in Florida have been getting demand letters (threatening a lawsuit) and lawsuits served (without any demand letters or notice).
These can be pretty scary (and so are lawsuits) if you can’t show that a subscriber compliantly opted in to receive texts (reminder you need to hang onto these records for 5 years). Although this may sound tedious, it’s the best way you can prove your list of subscribers is fully compliant.
To make matters worse, we’ve seen plaintiffs use a “spray and pray” playbook which is why brands have seen a ton of demand letters and lawsuits in Florida. If you do get a demand letter, you’ll want to make sure that you can reach out to your SMS provider for guidance. Often you’ll want to be able to show that the subscriber in question did in fact opt into receive texts which is why you’ll always want to keep records of your subscriber data if you switch providers.
If you noticed all of this being described in past tense, the good news is that the latest amendments signed into effect on May 26th, have a big impact on lawsuits. Previously a consumer could jump straight to sending out demand letters and filing lawsuits, but with the new amendment, consumers have to request to opt out and give the company 15 days to remove them, before they file a lawsuit for many of the FTSA claims. The existing rules around longer quiet hours & message limits are still in effect.
With these changes in effect, the biggest challenge for brands sending texts to Florida is serial plaintiffs attempting to capitalize on a potential gap in the drafting of the Florida statute requiring all numbers be able to receive voice callbacks on the number sending the message. Not all phone numbers support incoming calls which is why this particular piece of legislation has been under review. To help address this potential area of risk, Postscript supports the ability to forward incoming calls to your toll free number to the phone number designated inside your admin control panel.
While this is an exciting change for brands using SMS today, this doesn’t mean you can put compliance on cruise control. Washington and Oklahoma both have their state specific regulations (with Oklahoma’s being a stricter carbon copy of the old “bad” FTSA) and Oklahoma is starting to see more OTSA lawsuits filed. Washington originally didn’t include a private right of action, but an amendment in April of this year has opened the door for more lawsuits (though it will be slightly harder to file a lawsuit in Washington than Oklahoma).
New State Regulations
So if balancing out the rules and regulations across 3 different states—currently Florida, Oklahoma and Washington— didn’t feel like a bit much, Maryland, New Jersey, and Connecticut recently passed their own state level regulations all with their own unique requirements. All three will be in effect within the next 6 months. Connecticut is the most recent state (late June) to sign their legislation into law with it going into effect on October 1, 2023. Maryland & New Jersey are happening towards the tail end of 2023 (Maryland on January 1, 2024 and New Jersey on December 1, 2023)
All 3 states include a private right of action like Oklahoma and Washington, so these changes will likely lead to more SMS related lawsuits/fishing expeditions.
Connecticut’s additions for SMS are fairly straightforward with longer quiet hours with the majority of the bill focused on regulations for telemarketers making phone calls.
Maryland’s SMS rules are fairly similar to what we’ve seen in Florida & Oklahoma—longer quiet hours and number of messages per 24 hour period. It also adds new rules for telemarketers using auto dialers (no attempts to conceal identity through call blocking technology and requiring the phone number displayed matches where the call is originating from).
In addition to setting their own longer quiet hours and preventing telemarketers from using call blocking technology to change the displayed phone number, New Jersey will require that brands include their mailing address in each message starting in late 2023.
If you are already on Postscript, good news! The Postscript platform already handles the regulations in Florida, Oklahoma and Washington and will be addressing the requirements for Connecticut, Maryland and New Jersey before they go into effect. These features are available so you can rest easy knowing you have the latest compliance updates to be sending texts compliantly.
Beyond just having the guardrails in place, Postscript’s compliance team is proactively monitoring trends across our 10,000+ customer base to identify potential bad actors before they show up on a list of known litigators. The Postscript team proactively reaches out to merchants when a risk has been identified to help guide them through the actions they will want to take.
As these regulations continue to change, and more states enter the mix, you’ll want to make sure your SMS provider is building in guardrails to make compliance a lot easier to manage. As the playbooks used by plaintiffs evolve and litigation shifts / picks up across various states, it’s increasingly important to have an SMS provider who monitors and communicates changes proactively. Remember, it’s a lot easier to be ready before than after the fact.
If you aren’t already on a compliance first platform like Postscript, you’ll want to ask your provider the following questions.
How does your platform handle SMS compliance? Do you use a shared responsibility model for compliance, or do you have guardrails in place to ensure compliance (quiet hours, carrier enforced best practices)
What type of compliance support does your team provide?
How does your team get involved in case I receive a demand letter?
Do you offer different types of compliance audits?
Does your platform offer a known litigator block list (automatically removing subscribers tied to know sms litigation)?
Does your team proactively monitor trends to identify potential compliance risks and proactively assistance merchants?
Does your platform automatically remove subscribers who change carriers? (This ensures that someone doesn’t get a new phone number that is already subscribed to texts that they didn’t opt in for)
Does your platform have support for fuzzy opt-outs (for example, if a customer sends “stopp” instead of “stop”)?
Does your platform support call forwarding for Toll Free Numbers?
How does your company monitor changes in SMS compliance? Are you monitoring changes at the state level in addition to TCPA? (e.g., federal, state, CTIA, and carrier specific rules)
How long did it take your company to respond to the recent Washington & Oklahoma compliance changes?
Do you have an existing relationship with the carrier networks?
How does your team handle an issue with a carrier (messages being overly filtered, phone number is blocked, etc.)?
Staying compliant in the face of constant regulation changes can feel overwhelming. Postscript is committed to a product led approach to compliance ensuring your store has the tools to remain compliant as your group your SMS program.
Want to learn more about all the ways Postscript can help take some of the compliance stress off your shoulders? Get in touch with our team here.
Principal Market Intelligence Manager
Mindy Regnell is the Principal Market Intelligence Manager at Postscript. Over the last 15 years in ecommerce, she has run an online store, studied over 30 different ecommerce platforms, and tracked the latest trends. When she isn’t geeking out on SMS or ecommerce, Mindy can almost always be found quilting up a storm.