Texting Laws: Federal and State-by-State

SMS marketing is a quick, effective way for businesses to reach customers about promotions, offers, and time-sensitive information. As with any business practice, it also requires careful and intentional legal compliance.

Texting laws are meant to protect consumers from spam, fraud, and unwanted messages from businesses and unauthorized senders. The laws also safeguard consumer data and privacy. Following texting laws carefully is the first step in any successful SMS marketing campaign, as failure to comply may result in substantial financial and legal penalties. 

In this article, we’re covering everything you should know about texting laws, both federal and state. Read on to learn how to text consumers safely and legally before you start communicating with your customers via SMS. 

Jump right to:

• Federal Texting Laws to Know
• Tips for Federal SMS Marketing Law Compliance
• Mobile Carrier Compliance Tips
• Text Messaging Laws by State
• State-Specific SMS Law Compliance Tips
• Texting Law Violation Penalties

Federal Texting Laws to Know

Two key federal laws regulate text messaging and apply to all U.S. states: the Telephone Consumer Protection Act (TCPA) and the CAN-SPAM Act. We’re covering these laws in detail to share everything your business needs to know about texting regulations and how to comply with them. 

Telephone Consumer Protection Act

The Telephone Consumer Protection Act (TCPA), a product of the Federal Communications Commission, is the primary anti-telemarketing law and the leading rule for SMS marketing in the U.S. 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 consumer messages without their consent. Businesses must obtain explicit written consent before adding someone to their SMS marketing subscription list. In other words, there must be saved, documented proof that an individual has opted to receive marketing SMS messages before businesses can start texting them.

Here are some TCPA-compliant ways for businesses to grow their SMS marketing subscription base:

• Keyword texting. Businesses encourage consumers to text a keyword from their mobile device to a phone number to join an SMS program.
• Filling out a form. Businesses ask customers to fill out a form stating they agree to receive text messages. This can be a physical paper form or a digital online form.
• Website pop-ups. Include a pop-up form on your website to 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 all the expectations of their SMS communications and provide a clear way for subscribers to opt out. This disclosure should include:

• A description of the types of texts 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 SMS program.
• A link to your privacy policy. 
• Instructions on how to opt out from receiving messages.
• How subscribers can get help from your business.

For more information on TCPA guidelines, check out our TCPA Compliance Checklist.

CAN-SPAM Act

The CAN-SPAM Act gives recipients the right to opt out of commercial messages from businesses. Enforced and regulated by the Federal Trade Commission, this act protects consumers from unwanted mobile commercial messages. Here are a few key CAN-SPAM Act regulations that apply to text message marketing:

• Don’t use false or misleading information. The content of your message must be clear and accurate. Don’t include misleading deals or statistics.
• 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 your business's texts.
• 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.

Tips for Federal SMS Marketing Law Compliance

With strict texting laws in mind, you must be careful when planning your SMS marketing strategy. Keep the following practices in mind while you craft your SMS campaign: 

Gain Explicit Consent

Express written consent is the most critical aspect of compliance. The TCPA defines it as a written agreement, signed by the consumer receiving the call or text, with a clear disclosure that authorizes the business to send marketing communications. When requesting consent, 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, it is highly recommended as a safety net to confirm that consumers have consented to receive your messages. This simply means sending a text welcoming customers to your program and asking them to reply JOIN to confirm their choice. 
• 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. 

Honor Opt-Outs

Your business must provide a clear, easy way for subscribers to opt out of receiving your text messages. A good example of a clear opt-out method is to add “Text STOP to cancel” at the end of each text message. Once a subscriber opts out, your business must stop texting them. Honoring opt-outs and helping simple opt-out methods your business establish trust with your consumers and subscribers. 

Pay Attention to Timing

When sending business texts to consumers, it’s important to know the time of day you are sending your text messages. According to the TCPA, text messages should not be sent outside of business hours. This means you should not send texts before 8 a.m. or after 9 p.m. This timing restriction under federal law refers to outside of these hours as marketing quiet hours. To be mindful of business hours, ensure you know and adhere to your recipients’ time zones.

Mobile Carrier Compliance Regulations and Tips

In addition to federal laws, the industry trade group representing mobile carriers like Verizon and AT&T requires businesses to follow several regulations when texting customers. Here are the key regulations and guidelines to help you comply.

Avoid SHAFT Topics

The CTIA has regulations for 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. Additional prohibited content includes loan solicitation, debt collection, and messages related to gambling, credit repair, cannabis, CBD, and deceptive marketing. Some exceptions can be made for messages involving alcohol and tobacco if the consumer provides proof that they are of legal age. However, staying clear of any SHAFT content in your marketing text messages is a smart idea. 

Follow Proper Registration Requirements

The registration requirements for 10DLC phone numbers (10-digit long code) have changed within the last few years. The positive of this change is that it’s easier for businesses to go through the registration process. To register for a 10DLC number, you’ll need:

• Your business number or tax ID number (EIN), which confirms that you are a business entity 

• Your country

• Your organization’s website

• Your designation, e.g., a sole proprietor or nonprofit
• Your industry

The next step in the registration process is 10DLC vetting. The vetting process ensures that your messaging campaigns comply with carrier standards. While the registration process is tedious, it helps your business in the long run by ensuring it complies with texting regulations. You can even have your text messages qualify for better delivery rates and lower filtering.

Text Messaging Laws by State

In addition to federal texting laws, specific texting laws exist in some states. These state laws are important to note so consumers in each state can be protected from unsolicited texts, and your business can avoid hefty fines for failing to comply. 

Arizona

In 2023, Governor Hobbs signed House Bill 2498, prohibiting sellers from sending unsolicited text messages to individuals on the National Do Not Call Registry. Violators could face up to $1,000 in fines.  

California

The California Consumer Privacy Act (CCPA) gives consumers the right to request a report of their personal information from companies. To comply with the CCPA, businesses must disclose how they share and use personal data, provide clear opt-out methods for consumers, and stop texting consumers who opt out within 15 days of their opt-out request. 

Connecticut

Connecticut’s Public Act No.14-53 requires that businesses get express written consent from consumers before sending commercial text messages. If a business fails to do so, it can be subject to a $20,000 fine. Businesses also cannot text individuals on the Connecticut Do Not Call Registry. 

Florida

In 2023, House Bill 761 was signed into law and took effect immediately to amend the Florida Telephone Solicitation Act (FTSA). The bill states that businesses need to receive express written consent before sending text messages to consumers, and consumers must be able to reply “STOP” to opt out. Businesses must honor opt-outs and stop sending texts within 15 days. 

Indiana
Indiana’s House Enrolled Act 1273 expanded legislation to treat text messages as sales phone calls. The law also prohibits businesses from sending unsolicited texts to consumers on the Indiana Do Not Call Registry. 

New Jersey

The Assembly, No. 617 law prohibits unsolicited text messages for advertising purposes. It requires that companies gain explicit consent from consumers before sending text messages. Companies must also provide a way for consumers to opt out of text messaging communications. Violators can receive fines from $500 to $1,000.

Oklahoma

The Oklahoma Telephone Solicitation Act (OTSA) took effect in 2022, and it regulates sales calls and text messages. According to the OTSA, companies are prohibited from texting consumers who have not given explicit consent. The law also prohibits commercial texts from being sent before 8 a.m. and after 8 p.m. in the consumer’s local time zone, and there can be no more than three commercial texts about the same subject sent per day. 

Virginia

The Virginia Telephone Privacy Protection Act was amended in 2020 to protect consumers with non-Virginia area codes who reside in Virginia. According to Virginia law, businesses sending commercial text messages must identify themselves and cannot text consumers on the Do Not Call Registry. Violators are subject to $500 fines for a first violation, $1,000 for a second, and $5,000 per additional violation. 

Washington

Washington’s Consumer Electronic Mail Act (CEMA) prohibits business marketers from sending commercial text messages without prior permission from recipients. 

Wisconsin

Wisconsin’s ATCP 127 prohibits unsolicited text messages to phone numbers on the Do Not Call Registry. Those on Wisconsin’s No Call program are protected from unsolicited text messages. 

State-Specific SMS Law Compliance Tips

Each state has its own laws, but many similarities exist. Here are the best tips to keep in mind when sending text messages to consumers in these states:

• Arizona, Connecticut, Florida, New Jersey, Oklahoma, Washington, and Wisconsin. These states all require marketers to receive explicit consent before texting consumers. Be sure your business has clear methods for collecting explicit consent from consumers, such as keywords and forms, which are also part of the TCPA opt-in methods. 
• California and Florida. These states require marketers to have clear opt-out methods and to stop texting consumers who opt out within 15 days. To comply with this regulation, your business should have a clear opt-out strategy in place and use automations and data to keep track of opt-outs and ensure you don’t text consumers who have opted out. 
• Arizona, Connecticut, Indiana, Virginia, and Wisconsin. These states prohibit unsolicited commercial texts from being sent to phone numbers on each state’s Do Not Call Registry. Your business should use automations to continuously update your contact list to avoid sending unsolicited texts to these numbers and facing penalties. 

Texting Law Violation Penalties 

Penalties for violating text messaging laws can vary, depending on the violation and whether or not it was a repeated offense. For example, businesses who violate TCPA laws can face:

• Citations from the FCC that may result in fines or corrective actions.
• A potential investigation or audit of your business by the FCC. If you’re deemed non-compliant, you may see more severe penalties.
• Fines ranging from $500 to $1500 per message. Individual text message recipients have the right to seek damages that result in these fines. 
• Subjection to a class-action lawsuit where cumulative damages can quickly add up.

Repeated failure to comply with SMS marketing laws may lead to legal action, often resulting in a complete restriction of text messaging communications.

Exercise Compliant SMS Marketing with Textedly

SMS marketing laws exist to protect consumers from unsolicited messages and 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 your free trial of Textedly and start sending compliant SMS marketing messages today.