Understanding Texting Laws & Violation Penalties

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. 

• Texting laws in the United States
  • Stakeholders that oversee texting laws 
  • The Telephone Consumer Protection Act (TCPA)
  • The CAN-SPAM Act
• SMS marketing laws 
  • Opt-in and opt-out requirements 
  • Message content restrictions and requirements
• Text messaging laws by state
• Consequences of violating SMS marketing laws 

Texting Laws in the United States 

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: 

Stakeholders that Oversee Texting Laws

Three primary stakeholders oversee wireless device laws for texting in the United States:

• Cellular Telecommunications Industry Association (CTIA). The CTIA imposes ethical text marketing practices and represents the wireless communications industry.
• Federal Communications Commission (FCC). The FCC is an independent government agency that regulates electronic and media communications by wire, satellite, cable, TV and radio. 
• Federal Trade Commission (FTC). The FTC is a government agency that protects consumers by handling complaints or violations that occur via media communications. 

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)

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:

• Keyword texting. Consumers text a keyword from their mobile device to join an SMS database.
• Filling out a form. Customers fill out a paper form stating they agree to receive text messages from a business. This can be on physical paper or online.
• Website pop-ups. A pop-up form on your website can share details of your SMS program and allow engaged visitors to opt in.

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:

• A description of the program they are subscribing to.
• The approximate number of messages they should expect to receive in a defined period (such as per week or month). 
• A link to the full terms and conditions of the privacy policy. 
• Instructions on how to opt out from receiving messages and how they can get help. 

Read More: Complete TCPA Compliance Checklist and Guide for SMS Marketing

The CAN-SPAM Act

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:

• Don’t use false or misleading information. The content of your message must be clear and accurate. 
• Identify the message as an advertisement. It should be clear that your text message is a business advertisement. 
• Clearly state how recipients can opt out of receiving messages. There should be an easy, recognizable way for consumers to unsubscribe from texts from your business.
• Honor opt-out requests promptly. When a consumer opts out, you have 10 business days to remove them from your list of subscribers. 
• You can’t contract away your legal responsibility. If someone is doing work on behalf of your business, it is still your job to ensure that your messages comply with the law.

The CAN-SPAM Act does not apply to messages regarding existing transactions or relationships, such as delivery notifications.

SMS Marketing Laws

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: 

Opt-In and Opt-Out Requirements

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:

• You cannot ask customers to consent as a condition of their purchase. This practice is illegal, according to the TCPA.
• Web opt-ins require double opt-ins. Although this is not enforced by law, this is highly recommended as a safety net to confirm that consumers have consented to receiving your messages. 
• Send a confirmation text when a consumer opts in. Your confirmation message should also contain information regarding what the consumer has subscribed to, like your campaign’s purpose, your organization’s identity, terms and conditions, your brand’s privacy policy and information about data usage. 

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. 

Message Content Restrictions and Requirements 

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.

Text Messaging Laws by State

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:

• More restrictive “quiet hours” windows. Sending a text message outside the state’s quiet hours may result in a fine.
• Broader definitions of automatic telephone dialing systems. This impacts which messages are subject to laws and regulations. 
• Additional fines and criminal penalties. In some states, fines reach up to $10,000 for a first-time penalty. In other states, you may be sued or even face misdemeanor charges. 

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. 

Consequences of Violating SMS Marketing Laws

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:

• Citations from the FCC that may result in fines or corrective actions.
• The FCC may investigate or audit your business. If you’re deemed non-compliant, you may see more severe penalties.
• Individual text message recipients have the right to seek damages from $500 to $1500 per message.
• You may be subject to a class-action lawsuit where cumulative damages can very quickly add up.

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. 

Exercise Compliant SMS Marketing with Textedly

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.