In order to protect consumers from receiving a barrage of unsolicited text messages, SMS marketing is regulated under US law. Subsequently, marketers are obligated to follow certain codes of practice otherwise you will face hefty penalties.

The legal requirements for conducting SMS marketing are governed by the Federal Communications Commission (FCC). The two primary laws they enforce are the Telephone Consumer Protection Act (TCPA) and the CAN-SPAM Act.

Businesses that do not observe the statutory rights of US consumers could face fines of $500 up to $1500 per unsolicited text message.

In addition to the FCC, there are two other regulatory bodies; the Cellular Telecommunications Industry Association (CTIA) and the Mobile Marketing Association (MMA).

Neither the CTIA nor MMA are government bodies. Therefore, they do not have any power to enforce fines or legal requirements, but they do help the FCC to monitor marketing violations and ensure Messaging Principles and Best Practices are adhered to.

The CTIA are the conglomerate of wireless carriers that provide the networks that make SMS messaging possible. They have the power to cut off SMS services to businesses that are deemed to have violated either the TCPA or CAN-SPAM.

Whilst the MMA does not have any legal or controlling powers, they are on hand to help businesses adhere to best practices. Click here to learn more about what you can and cannot do in SMS marketing.

What is the TCPA 1991?

what is tcpa

The TCPA was originally passed in 1991 as a response to consumer complaints over telemarketing. Regulations provided by the legislation restrict businesses contacting consumers without prior consent.

Guidelines presented in the legislation restrict the use of devices and practices including automated telephone equipment, pre-recorded messages, artificial messages (robocalls), auto-dialing systems and text messaging.

In October 2013, the TCPA was updated to include SMS text marketing. The key stipulation was that businesses were obligated to ask consumers for permission to send commercial text messages.

Furthermore, the request for consent cannot be unambiguous. Consumers must be given clear and concise notice of what they are agreeing to, and conspicuous disclosure of the type of messages they will receive from you.

For example, it is not permitted to request the phone number from an internet user visiting your website then send them SMS marketing messages promoting products or services.

It should be noted that consent for text messaging must also be given in writing, or by directly replying to a text message asking if they want to be included on your contact list and receive promotional offers via text message.

Best practices suggest consumers should be invited to receive commercial text messages and presented with a short code that confirms they want to opt-in. Customers that respond give you permission to contact them.

Alternative methods of obtaining written consent from consumers is through traditional paper forms, email or a landing page on your website.

Consumers are also entitled to opt-out. Marketers must, therefore, provide consumers with the means to be removed from your contact list whereby you must cease sending marketing text messages.

Businesses are also obligated to inform potential recipients how often they will receive a text message, and given notice of potential carrier costs and fees.

What is the CAN-SPAM Act 2003?

can spam act

The CAN-SPAM Act was initially introduced as a supplement of the regulations outlined in the TCPA. The intention of the legislation is to control unsolicited marketing messages (spam) and pornography sent via email.

Emails sent to smartphones are included under the legislation.

The CAN-SPAM Act defines unsolicited email messages as primarily advertising or promoting a product or services.

Messages sent to consumers after a transaction has already taken place are not included in the act providing the content is relevant to the purchase; e.g. warranty, confirmation of delivery date, appointment reminder.

Key Requirements For SMS Marketing

For ease of reference, listed below are the steps you should follow in order to engage in SMS message marketing without violating the regulations given under the TCPA or CAN-SPAM acts.

Consent must be given in writing either by a returned text message, via email or a form completed electronically or by hand. If you redirect customers to a landing page, you must leave all the boxes unchecked.

Automatic responses to an initial opt-in promotion are permitted. For example, if you want to entice customers to join your SMS list by offering 50% off their first purchase you are entitled to do that, but you must still get written consent before you are permitted to continue sending additional promotions.

Written consent must include the following:

  • The name of your business
  • The types of messages you will be sending (marketing, newsletter updates, reminders, confirmations etc.)
  • How frequently you intend to send messages 
  • Confirmation that no purchase is necessary
  • Notification that standard messages and data rates may apply if they respond to the opt-in message and subsequent messages 
  • The initial text must also state that the recipient does not have to respond if they do not want to give consent 

An example SMS message requesting permission from consumers may look something like this:

e.g. Join JOOKSMS today. 2-4 msg/mo, marketing, reminders, confirmations. No purchase required. Reply to 55898 to opt-in. Std msg&data rates apply.

2. Opt-Out

In addition to the initial requirements above, customers that agree to join your SMS messaging list must also be given the opportunity to opt-out.

The best option is to include this on the initial text. However, other options are to either send an email or separate text message providing instructions of how to opt-out.

e.g To stop receiving text messages from us send STOP to 55784

3. Content Must Be Relevant

Brands are only obligated to send content to recipients that you have been given consent for.

In the above example, you would only be able to send promotional SMS offers, reminders and confirmation of appointments, purchase or shipping. You would not be permitted to send notifications of newsletters, events and company updates.

4. Include T&C’s in Fine Print

In order to invite customers to opt-in to your SMS program, you will need to advertise that you have one. This ordinarily involves creating offline marketing content such as posters, flyers and cards.

An example of a promotional poster might read: Sign up for our SMS program and get 50% of your first purchase. TXT I’M IN to 55055 now!

Underneath the big, bold promotional offer you must also include fine print that details the terms & conditions of your SMS program. The T&C’s are the same requirements listed above in the section covering written consent.

SMS messaging is a powerful tool to have in your marketing arsenal, but if you do not abide by FCC regulations, the penalties are very costly. So make sure you understand your legal requirements and follow the rules outlined above.

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