Is Text Message Marketing Legal? How to Be SMS Compliant

Text marketing is an incredibly effective marketing tool, but only when conforming to some common-sense rules that happen to be the law.

Image depicting the words "Compliance" "Rules" and "Regulations"
July 8, 2022
Chloe Mulliner
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Yes, text marketing is legal, as long as you comply with the rules and regulations that are required by law. Follow along to find out how to be SMS compliant.

Short Message Service (SMS) marketing, or text marketing, refers to messages that businesses text to their customers. This kind of digital marketing is a strategy companies use to boost customer engagement, build brand loyalty, and even increase sales.

For example, your small business can use SMS marketing to announce an upcoming summer sale, offer a special promo code, request feedback, or even encourage customers to enter a contest. It provides you with direct access to your customers, giving you the opportunity to have a one-on-one conversation.

But, let’s back up a minute. This form of marketing allows you to directly text your customers right on their mobile devices, so is text message marketing legal? Yes, text message marketing is legal as long as you are compliant and follow the existing text marketing laws.

You see, there are U.S. laws that govern the ways in which you can market to consumers, and if you break them, you could face fines or even lawsuits, which could potentially harm your brand. That’s why it’s so important to understand and comply with the rules and regulations outlined by the law.

Simply put, the law requires that you send non-intrusive text messages to your customers, which we will more thoroughly define as we go along. To help ensure you’re following all the proper legal requirements, we will cover everything you need to know about the legality behind SMS marketing.

Is Text Marketing Legal?

Let’s go back to our original question, is text marketing legal? Yes, text marketing is legal. However, there is a set of privacy laws and guidelines that protect consumers’ rights.

Understanding the Law

To begin to understand the rules and regulations surrounding text marketing, it’s important to know which entities are in charge of the regulation and enforcement of these laws. All legislation regarding SMS marketing is set forth and regulated by the following entities:

Basic chart of regulation entities

Now that you know the four key regulating entities, what’s next? Meaning, as a text or mobile marketer, how do you know what’s legal and what’s not? That’s where the federal laws that govern text marketing come into play. In the U.S., the two most important laws are the TCPA and CAN-SPAM Act. There are also the MMA Consumer Best Practices and CTIA Short Code Compliant Handbook, which are not laws, but rather guidelines that outline industry standards.

 

Telephone Consumer Protection Act (TCPA)

The TCPA applies to all telecommunications. While it was originally designed to protect consumer privacy and regulate telemarketing calls, it has since been updated to include SMS texts.

Under the TCPA, marketers must receive express written consent before sending promotional messages to their customers. They can obtain this consent in several ways, such as asking their customers to opt in by texting a keyword to a special shortcode or filling out an online form.

Additionally, this act also states that marketers must be completely transparent with their customers. They are required to clearly identify their business and be honest about what their text messaging program will involve, such as the terms and conditions, the frequency of messaging, and that standard messaging and text rates apply.

The TCPA also requires marketers to provide customers with an opportunity to opt out of messaging services. Once a customer opts out, marketers legally can’t contact them again (unless they are sending them a one-time confirmation message).

Under the TCPA, the standard penalty is up to $500 per violation — and that’s $500 for each message in violation, not $500 for the entire message campaign. Meanwhile, willful violations can cost up to $1,500.

 

CAN-SPAM Act

In 2003, Congress passed the CAN-SPAM Act, which essentially required the FCC to develop rules around unwanted electronic commercial messages, including email and texts.

As its name suggests, this act helps to prevent customers from getting spammed by solicited and unsolicited messaging. In conjunction with the TCPA, this legislation makes it illegal for marketers to send unwanted text messages to a customer’s cellphone. It enforces what was outlined in the TCPA, requiring marketers to provide customers with the ability to opt out of messaging services and cease communication within ten days of the customer choosing to unsubscribe.

Violations of this act can carry fines of up to $16,000.

In addition to the financial penalties associated with violating these acts, marketers can also get slapped with lawsuits for ignoring these rules. For example, in the 2017 class-action lawsuit, Esparza vs. Smartpay Leasing Inc, the class representative plaintiff was awarded $8.7 million after Smartpay Leasing Inc. sent out marketing messages with no unsubscribe option.

 

MMA Consumer Best Practices Guidelines

The MMA is responsible for the CBP guidelines, which sets the industry standard for SMS marketing. It provides a playbook of accepted practices, standards, and frameworks for U.S. wireless carriers to follow to ensure SMS campaigns are consistent across the board.

 

CTIA Shortcode Monitoring Handbook

The CTIA developed the Shortcode Monitoring Handbook to enforce SMS best practices, particularly when it comes to SMS shortcode programs. Shortcode refers to the five- or six-digit phone numbers marketers use to communicate with consumers. This handbook outlines what can and cannot be included in SMS campaigns to help protect the consumer experience.

While the MMA and CTIA documents are only guidelines — not federal laws — it’s still important to understand and follow them.

8 Simple Ways to Ensure SMS Compliance

MMS sample text

Don’t let all the compliance rules and regs discourage you from experimenting with SMS marketing. It really comes down to respecting the privilege of texting an individual’s phone.

The list below simplifies some of the do’s and don’ts of SMS compliance so you can take advantage of this marketing tool and reap all the benefits that come with SMS — from improved customer engagement to increased customer retention.

 

1. Don’t Add Phone Numbers to Your Subscription List without Written Permission

This one is a biggie — perhaps the most important rule of all. You must receive written consent before adding a customer to your subscription list. And just because a customer provided you with their mobile phone number at one point or another doesn’t mean they have agreed to receive marketing messages from you via text.

 

2. Do Receive Written Consent before Sending SMS Messages

In the same way you shouldn’t add contacts to your subscription list without their permission, you shouldn’t message them without their written content either. Failing to follow this rule is one sure way to get yourself into hot water. Always receive written consent from a customer before sending marketing messaging to their mobile devices.

Again, consent can be gained in several ways, such as asking customers to opt in by texting a keyword to a special shortcode or filling out an online form. Some SMS marketing providers offer templated forms to help make it easier to create these forms.

Sample consent form

 

3. Do Provide Your Customers with Several Ways to Opt In

There are several ways you can go about receiving written consent. You can:

  • Provide an online form for signing up
  • Offer an in-person, physical form for opting-in
  • Include a link on your website for joining your text subscription list
  • Ask the customer to text a Keyword to your shortcode to confirm
Pick up sandwich board with keyword COFFEE with text chat bubbles

 

4. Do Include All Necessary Information in Your Confirmation Message

Sample MMS Message

Once your customers have agreed to receive SMS marketing from you, include the following information in your initial confirmation messaging:

  • Your business name
  • Nature of your messages
  • Terms and conditions
  • Standard and data rates disclaimer
  • Message frequency
  • Opt-out instructions

5. Do Consider Including a Double Opt-In

Sample SMS Message

If you want to be extra cautious, include a double opt-in feature requiring your customers to confirm that they’re agreeing to receive your messaging. Although this is not required by law, it’s a surefire way to ensure your customers understand the terms and conditions.

Doing so is as simple as asking customers to confirm their subscription by replying with “Yes” or “Y.” This double opt-in message will come as a follow-up text to the initial subscription welcome text.

It may seem counterintuitive to ask for consent twice, but there are instances where single opt-in subscribers may claim they didn’t realize that texting you would give you permission to text back. This ensures that you have a solid list of folks truly consenting to receive your communications.

6. Do Make Sure Opting Out Is an Ongoing Option

Sample Unsubscribe SMS Message

Texting “STOP” has pretty much become the universal signal for opting out of a subscription list, but it’s important that you convey this to your customers beyond the initial welcome text. At any point, your customers must be able to decide to stop receiving marketing texts from you.

To remind your customers of this option, on every SMS text or every so often, you can include messaging, such as “Text STOP to unsubscribe,” “Text STOP at any time to opt out,” or “Reply with STOP to cancel.”

If your customer texts “STOP,” you are not in violation of the TCPA if you send one follow-up text confirming that the customer has opted out. This message might say something like, “You have been successfully unsubscribed & will no longer receive any more messages. Text START to resubscribe. Msg & data rates may apply.”

 

7. Do Honor Your Terms

Your customers expect you to be true to your word, and if you aren’t, they might take their business elsewhere. If you say you’ll only send out five messages a month, stick to that number (or less). And if your customer decides to opt out, immediately remove them from your subscription list. Not only does this help you respect your customers, but it helps keep you in line with the law as well.

 

8. Do Familiarize Yourself with the Law

Even if you’re relying on a third-party company to oversee your SMS marketing campaigns, don’t just assume they’re following the rules. Be proactive, know the law, and make sure all outgoing messages are compliant. Remember, even if you’re not physically sending out those messages, your company is still on the line and will be held accountable for any violations.

At the end of the day, a big part of being compliant revolves around giving your customers clear opt-in and opt-out instructions, as your customers should be free to join or remove themselves from your marketing list as they wish. For more pro tips on creating a successful (and compliant!) text campaign, check out our SMS marketing guide.

Try SMS Marketing for Yourself

Now you know the answer to the question, is text marketing legal, it’s time to start developing a perfectly legal SMS marketing strategy of your own. To get started, turn to EZ Texting. Our SMS marketing platform makes it easier than ever for you to build a text marketing campaign that aligns with all the appropriate rules and regulations.

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