SMS marketing is a quick, effective way for businesses to reach customers about promotions, offers and time-sensitive information – but, as with any business practice, it requires careful and intentional legal compliance.
Texting laws are meant to protect consumers from spam, fraud and unwanted messages from businesses and unauthorized senders and safeguard their data and privacy. Following these laws carefully is the first step in any successful SMS marketing campaign, as failure to comply may result in substantial financial and legal penalties.
Here’s what you should know about texting laws (including a state-by-state guide) before you start communicating with your customers via SMS.
Two primary text messaging privacy laws are enforced in the United States: the Telephone Consumer Protection Act (TCPA) and the CAN-SPAM Act. Here’s what you should know about these laws, as well as a brief overview of the stakeholders that enforce them:
Three primary stakeholders oversee wireless device laws for texting in the United States:
The CTIA advocates for ethical wireless communications to establish the best marketing practices for mass SMS texting. While they do not create or impose laws, they help inform policy and encourage the upkeep of principled communications.
On the other hand, the FCC and FTC have the legislative power to enact laws, regulations and penalties for businesses.
The Telephone Consumer Protection Act (TCPA), a product of the FCC, is the primary anti-telemarketing law and the leading regulator of SMS marketing in the United States. It protects consumers from receiving unsolicited calls or text messages by subjecting all marketing calls, faxes and text messages to government regulation.
Under the TCPA, companies may not send messages to consumers without their consent. Even if an individual provides their phone number or has a long-standing relationship with a business, businesses must obtain explicit written consent – not verbal – to add the individual to their SMS subscription list. In other words, there must be saved, documented proof that an individual has opted to receive SMS messages before businesses can start texting them.
Here are some TCPA-compliant ways for an individual to join an SMS marketing subscription base:
Once consumers opt in to receive messages, the TCPA requires businesses to disclose the full scope of their SMS communications and provide a clear way for subscribers to opt out. This disclosure should include:
Read More: Complete TCPA Compliance Checklist and Guide for SMS Marketing
The CAN-SPAM Act gives recipients the right to opt out of commercial messages from businesses. Enforced and regulated by the FTC, this act is meant to protect consumers from unwanted mobile commercial messages. Here are a few key components of the CAN-SPAM Act that apply to text message marketing:
The CAN-SPAM Act does not apply to messages regarding existing transactions or relationships, such as delivery notifications.
With strict texting laws in mind, you must carefully and attentively plan your SMS marketing strategy. Keep the following in mind while you craft your SMS campaign:
Express written consent is the most critical aspect of compliance. The TCPA defines express written consent as a written agreement, signed by the consumer receiving the call or text, with a clear disclosure that authorizes the business to send telemarketing communications. It must be explicit, transparent and comprehensive for the consumer to lawfully agree to the conditions.
Here are some things to keep in mind when you ask for express written consent:
Providing a clear, easy way for subscribers to opt out of receiving messages from your businesses is also important. Subscribers must have a way of opting out of your subscriber list. Tricking consumers into opting in or making it difficult to opt out is a violation of the law – however, it also compromises trust and brand integrity. Adding “Text STOP to cancel” at the end of each text message will suffice.
The CTIA outlined a set of content rules involving restrictions on content involving sex, hate, alcohol, firearms and tobacco (often referred to as SHAFT). Most messages involving this type of content are strictly prohibited. However, exceptions can be made for messages involving alcohol and tobacco if the consumer provides proof that they are of legal age.
Additional prohibited content includes loan solicitation, debt collection, and messages related to gambling, credit repair, cannabis, CBD and deceptive marketing.
In addition to federal laws, some states have their own laws restricting the use of certain SMS marketing messages from businesses. General requirements that vary from state to state include state registration as a telemarketer, time of day requirements, disclosure of solicitor information and allowing returns of products sold.
Several states have state-specific laws regarding SMS marketing, including Arizona, California, Colorado, Connecticut, Florida, Indiana, Louisiana, New Jersey, New York, North Dakota, Oklahoma, Rhode Island, Texas, Utah, Virginia, Washington, Wisconsin and Wyoming. These laws often include:
State laws must be followed, even by businesses operating and texting across state lines. To ensure compliance with all SMS marketing laws, monitor state-specific laws and adjust your texting practices accordingly.
The penalty for violating text messaging laws can vary, depending on the violation and whether or not it was a repeated offense.
For example, businesses violating TCPA laws can face:
Repeated failure to comply with SMS marketing laws may result in legal action, often resulting in a complete restriction of text messaging communications – even those that adhere to relevant laws.
SMS marketing laws exist to protect consumers from spam, fraud and unwanted messages, as well as safeguard their privacy by requiring transparency from businesses about when, where and how they’ll use consumer data. Failure to comply with texting laws may subject your business to hefty fines and legal penalties – but if you follow the law and plan your SMS marketing strategy intentionally, you’ll garner higher response rates and better performance.
If you’re ready to create an SMS marketing strategy that increases engagement, boosts sales and abides by texting laws, Textedly is here to help. Our straightforward, easy-to-integrate text messaging solutions give you the tools to reach your customers safely and effectively. We’ll help you enhance and refine your SMS marketing strategy and support you as you navigate the ins and outs of text messaging laws.
Sign up for Textedly’s free 14-day trial (no credit card required) and start sending compliant SMS marketing messages to your customers today.