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Understanding Legal Compliance for Nonprofit Text Messaging

Posted May 30, 2023 03:35 PM
Text messaging your supporters can have a lot of benefits for your nonprofit—from boosting donations to strengthening donor relationships—but only if you’re running a legally compliant campaign.

Like many elements of nonprofit management, your organization needs to study up on the relevant regulations in order to text supporters without facing steep fines or other legal repercussions.

The Federal Communications Commission (FCC) lays out these text messaging rules in the Telephone Consumer Protection Act (TCPA), created in 1991 to protect consumers from unsolicited calls and messages. The TCPA applies widely to all types of organizations, including brands, retailers, and nonprofits. While nonprofits are given some special treatment and may not always be as strictly held to TCPA standards as for-profit entities, it’s important to know exactly what your organization can and cannot do when it comes to running a legally compliant campaign.

We’ll walk you through the TCPA and how you can apply these regulations into your text messaging strategies. Specifically, we’ll cover:

  • What is the TCPA?
  • How does the TCPA affect nonprofits?
  • Best practices to remain TCPA compliant

Running a legally compliant text messaging campaign not only keeps your nonprofit in good standing with the government, but also helps you earn supporters’ trust and maintain a positive reputation. This article is not intended to be legal advice, so remember to consult with an expert to give your organization a full look into how to remain compliant.

What is the TCPA?

The TCPA, which stands for Telephone Consumer Protection Act (TCPA), was enacted by the Federal Communications Commission (FCC) in order to protect consumers’ privacy and ensure they aren’t bombarded with unwanted promotional calls, text messages, and robocalls.

Broadly, the TCPA governs telecommunications in the following ways:

  • Telemarketers must receive express written consent to reach a consumer by phone. Written consent means that the consumer must express in writing, with an accompanying signature, that they want to receive marketing communications. However, under the E-Sign Act, digital consent can also work. For example, when a consumer opts-in to a text messaging campaign and texts “Yes” in response to understanding the terms and conditions of the service, this constitutes as written consent under the TCPA.
  • Telemarketers must provide an “opt-out” mechanism so consumers can stop receiving messages or calls at any time. Recipients of marketing communications should be able to text a short word or phrase, like “STOP,” to leave the campaign and no longer receive communications.
  • Telemarketers cannot contact anyone on the national Do-Not-Call registry. The Do-Not-Call registry, which is regulated by the Federal Trade Commission (FTC), is a free service where any consumer can add their mobile and home phone numbers to prevent unwanted communications from telemarketers.

However, nonprofits are viewed separately from businesses and are therefore not held to these rules to exactly the same degree. Let’s take a closer look at how the TCPA specifically applies to nonprofits.

How does the TCPA affect nonprofits?

According to Tatango’s guide to TCPA compliance, nonprofits should be aware of the following special provisions and exemptions:

Nonprofits do not need the same level of consent as standard businesses

While for-profit entities need express written consent, nonprofits are given much more flexibility. If a supporter has given their phone number to a nonprofit at any time, even if they didn’t sign up for a text messaging campaign, the nonprofit is permitted to text or call this supporter under the TCPA. This is known as "implied consent" and is acceptable for nonprofits.

Nonprofits do not need to reference the Do-Not-Call registry and cross-check whether their supporters are listed

Nonprofits also do not need to maintain an internal Do-Not-Call list, unlike standard businesses. This is because nonprofits are in constant search of funding, and it’s understood that they wouldn’t expend time spam-calling the same individual that has already expressed that they’re uninterested in donating.

An agent acting on behalf of the nonprofit is subjected to the same exceptions

The messaging content from a volunteer, consultant, or third party vendor has to be related to the nonprofit’s purpose, such as sending donation appeals or even selling merchandise, as long as the funds raised go back to the organization’s cause.

However, a nonprofit or agent acting on behalf of a nonprofit cannot send messages that focus on selling items or services unrelated to the nonprofit’s mission and still be exempt from standard TCPA rules. This would be considered telemarketing and would fall under the full extent of the TCPA.

For example, a nonprofit might have a corporate partnership with a local car dealership. The car dealership cannot text the nonprofit’s supporters about their new leasing and financing offers or otherwise attempt to sell a product where the funds would not go back to the nonprofit.

Different courts may have different interpretations of whether a message constitutes as commercial or not, so it’s important to consult with a lawyer before sending any phone communications that ask supporters to purchase a product.

Best practices to remain TCPA compliant

Now that you have a better understanding of TCPA provisions for nonprofits, it’s important that you actively keep these standards in mind when composing the content of your messages and deciding who you can send communications to.

Use these essential tips to run a legally compliant and successful text-to-give campaign:

  • Make sure you have consent before texting a supporter. Remember that this doesn’t have to be explicit. As long as a supporter has given their number to you in the past, such as via your donation page, it’s understood that they’re open to receiving communications. Note that using a phone appending service is not acceptable since these constituents didn’t give you their phone number, so ensure that you have supporters’ implied consent to text them.
  • Include a way to opt-out of your texts. This is a legal requirement and best practice that will help your organization maintain trust with supporters. Ensure that you’re working with comprehensive nonprofit text messaging software that will properly process these opt-out requests to avoid technical difficulties.
  • Update your contact list regularly. Supporters may switch phone numbers, and if this change isn’t reflected in your contact list, you may inadvertently send communications to someone who has not given consent. The right nonprofit text messaging provider can help you maintain data hygiene and stay TCPA-compliant.

Be sure to train your staff in TCPA compliance so everyone is on the same page and can contribute to a well-developed text messaging campaign. This way, you can strengthen donor relationships, boost fundraising, and expand your brand visibility...all while complying with legal provisions.

Although nonprofits have a lower barrier to consent requirements and are given special treatment under the TCPA, it’s critical that you review exactly how to stay compliant so you don’t accidentally cross a line that risks your standing. Remember that a trusted nonprofit text messaging provider can guide you through creating a legally compliant campaign. Plus, consulting with a lawyer and/or nonprofit compliance expert is an all around good practice to set your organization up for success. Good luck!

About the Author: Mike Snusz

Mike Snusz brings two decades of digital fundraising experience to his role as Director of Nonprofit Customer Experience at Tatango, a text messaging platform for nonprofits and political campaigns.

Prior to Tatango, Mike spent 15 years at Blackbaud leading a team of digital consultants that helped nonprofits improve their online fundraising, monthly giving, email marketing and peer-to-peer fundraising programs. Mike started his nonprofit career managing the Ride For Roswell from 2003 to 2005 in his hometown of Buffalo, NY.