SMS marketing, also known as mobile marketing or text message marketing, is really popular, and so we get a lot of questions about SMS marketing best practices and SMS marketing law. These are really important questions, because the laws around SMS marketing are very strict, and very clear, and allow someone that you message to sue you directly. This is also why you have to be really careful when selecting SMS marketing platforms and SMS marketing services, and why you have to be sure you are working with an SMS marketing service that helps you adhere to the law.
SMS Marketing Best Practices
Mobile marketing best practices (i.e. SMS marketing) are actually pretty straightforward, and similar to email marketing best practices. You must have the consent of the owner of the phone number to be included on your SMS marketing list (i.e. they have to opt-in), and you must provide a way for the phone number to opt-out.
You also must store and retain the proof of their consent, and that’s the really important part, because of the Federal law around SMS marketing. This is because while email marketing law does not require the express consent of someone before you put them on a list (although best practices do), Federal law requires that in some circumstances you get the express, direct consent of the phone number’s owner before you send them even a single SMS marketing message. And those circumstances are much more common than you may think.
SMS Marketing Laws: the TCPA and the Do Not Call List
The TLDR: Don’t send SMS marketing to someone for whom you don’t have their express consent to send mobile marketing messages to their cell phone. The slightly longer version: The Telephone Consumer Protection Act (TCPA) lays out what telemarketers must do, must not do, and may and may not do, and part of that is that they must honor the Do Not Call (DNC) list. That means that they must not initiate marketing calls and solicitations to any telephone number that is on the DNC.
In 2015 the FCC issued a Declaratory Ruling and Order that articulates and makes extremely clear that the rules and regulations set forth in the TCPA also apply to SMS marketing by text message. So if you send an SMS marketing message to someone whose phone number is on the Do Not Call list, and you don’t have their express consent to send them a marketing message, you have just violated Federal law.
The Do Not Call List is Also a Do Not Text List
The bottom line is that if you send even just one single SMS marketing message to a phone number that is on the national Do Not Call registry, and you do not have their explicit, express consent for you to send them marketing text messages, you have just violated a Federal law that has built into it stiff penalties, and which the person to whom you sent that message can use to personally go after you; in other words it does not require the government to get involved, the individual can sue you directly (the government can also sue you, of course, and will if your actions are egregious enough).
This is why we say that it’s crucial that you store and retain the consent that they provide to be added to your SMS marketing list, because if you don’t and they add their number to the Federal Do Not Call list (either before or after you add them to your list), the only defense you have against a fine of up to $1500 per message is proof of their consent. Their consent is the only thing which overrides the Do Not Call list. If you don’t have that consent, they (the person whose phone number you just sent that message to) can personally come after you for up to $1500 for each message you have sent to them. And they don’t need a lawyer, all they need to do is go to small claims court.
If you want to read even more about this, see our article The Federal Do Not Call (DNC) Registry and the TCPA as it Applies to SMS Marketing.
How to Do SMS Marketing Right
When we talk about an SMS marketing service “doing it right”, what we mean is that they know about the Federal law, they care about the Federal law and the Do Not Call list, and they care about their customers not breaking the law, and so they communicate the requirements of the law to their customers and they help their customers to be sure that they are obtaining consent, and doing their own SMS marketing right.
And because they care about their customers, and about their customers not getting into trouble, they help their customers to be sure that they have express, verifiable consent (which not only keeps them from breaking the law, but also provides the most responsive list of people to whom to market). Make no mistake, there are SMS marketing services out there that don’t care whether their customers have consent, and don’t pay attention to the DNC list, because they (the SMS service) won’t get into trouble if their customers send to unpermitted phone numbers, and they don’t really care whether their customers break the law or get into trouble, as long as they keep paying; that’s not a company you want to do business with.
At the end of the day, SMS marketing can be very productive, and a great way to stay in touch with customers and even leads. But if you don’t do it right, or use a service that does it right, it can be a way to get into a lot of legal hot water, and quickly.