Yes, text marketing is legal, as long as you comply with the rules and regulations 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. Companies use this kind of digital marketing strategy 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 direct access to your customers, allowing you to have a one-on-one conversation.
But let’s back up a minute. This form of marketing allows you to text your customers directly on their mobile devices, so is text message marketing legal? Yes, text message marketing is legal as long as you comply and follow the existing text marketing laws.
You see, U.S. laws govern how 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 regulating and enforcing these laws. All legislation regarding SMS marketing is set forth and regulated by the following 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 initially 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 unique shortcode or filling out an online form.
Additionally, this act also states that marketers must be completely transparent with their customers. They must identify their business and be honest about their text messaging program, such as the terms and conditions, the frequency of messaging, and the standard messaging and text rates that apply.
The TCPA also requires marketers to allow customers to opt out of messaging services. However, once a customer opts out, marketers legally can’t contact them again (unless they send 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.
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. In addition, 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 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. In addition, 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 regarding 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 essential to understand and follow them.
8 Simple Ways to Ensure SMS Compliance
Don’t let all the compliance rules and regs discourage you from experimenting with SMS marketing. It 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 of 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 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 short code or filling out an online form. In addition, some SMS marketing providers offer templated forms to help make it easier to create these forms.
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
4. Do Include All Necessary Information in Your Confirmation Message
Once your customers have agreed to receive SMS marketing from you, include the following information in your initial confirmation message:
- 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
If you want to be extra cautious, include a double opt-in feature requiring your customers to confirm that they agree to receive your message. 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 be a follow-up 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 you have a solid list of folks who consent to receive your communications.
6. Do Make Sure Opting Out Is an Ongoing Option
Texting “STOP” has become the universal signal for opting out of a subscription list, but you must convey this to your customers beyond the initial welcome text. At any point, your customers must be able 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 violating the TCPA if you send one follow-up text confirming that the customer has opted out. This message might say, “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; if you aren’t, they might take their business elsewhere. If you say you’ll only send out five messages monthly, 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 also helps keep you in line with the law.
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 comply. 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.
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. Check out our SMS marketing guide for more pro tips on creating a successful (and compliant!) text campaign.
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.