On July 10, 2015, the FCC clarified US regulations around automatic text messaging by releasing its
TCPA
(Telephone Consumer Protection Act) Omnibus Declaratory Ruling. What follows is our best understanding
of how to make text message surveys comply with the new positions the FCC outlined in the 2015 Omnibus
Ruling. But we are engineers, not lawyers, so this is not legal advice!
Background On The Law
United States text messaging laws are complicated and change frequently. They largely originate from the
Telephone Consumer Protection Act of 1991, which was passed a year before the SMS was invented.
Every few years the FCC has issued clarifications and updates to the regulations; the 2015 Omnibus Ruling
changes some rules that the FCC issued in 2012. As evidence of how in-flux the rules are, only 2 of the
FCC's 5 commissioners approved this most recent Omnibus Ruling; 2 others partially approved it, and 1
dissented.
The main purpose of the TCPA is to prevent companies from sending unwanted telemarketing spam. Because of
that, we can summarize the law's restrictions on text messages in two points:
You must get consent from a person before you can send automatic text messages to that person.
The person must be able to, at any time, revoke their consent and stop receiving future text
messages.
How Instant Census Complies
Instant Census automated text messaging complies with TCPA regulations in 2 ways:
Automatic Welcome Message:
The automated, customizable welcome message includes compliance language "Text STOP to opt out..."
Automatic Opt-Out Handling:
Anyone who texts STOP gets sent an automatic unsubscribe confirmation, and then you cannot text them again. Anyone who texts something similar to STOP gets asked if they meant to opt out. Anyone who's been opted out by texting STOP can rejoin by texting START.
Institutional Review Board (IRB) Approval
If you need Institutional Review Board (IRB) approval for a particular study, that's a process we've been through in the past, and we're happy to provide documentation for your IRB application. For more information about this process, please contact us at sales@instantcensus.com.
HIPAA Compliance
The Health Insurance Portability and Accountability Act of 1996 (HIPAA), updated by 2013's Final Omnibus Rule, in conjunction with 2009's Health Information Technology for Economic and Clinical Health Act (HITECH Act) provides standards for the handling of certain health information by certain health care entities and their associates. Basically, it prevents health care providers from handing out confidential health information without patient permission, and sets up standards for protecting that information from theft.
SMS is not, and can never be, HIPAA compliant since messages must pass through a wireless service provider for delivery whose security measures are not designed for HIPAA's requirements. SMS is also not encrypted, which means data can theoretically be intercepted by anyone.
This doesn't mean SMS surveys cannot have a place for Covered Entities. It's just especially important to make sure you don't reveal too much information when communicating via SMS. If you're a Covered Entity to which HIPAA applies and you're interested in using SMS communications, contact us today or click here for more information.
We devote ourselves to educating our customers on TCPA guidelines and other compliance procedures involving automated text messaging so they understand how to properly use Instant Census to comply with specific regulations. For more information on TCPA guidelines in relation to automated text messaging, visit the
TCPA
Omnibus Declaratory Ruling website or contact us today!
