As SMS marketing (also known as text message marketing) becomes increasingly popular, people are confused about Federal SMS marketing regulations, and how the Federal ‘Do Not Call’ registry and the Telephone Consumer Protection Act (TCPA) apply to SMS text message marketing, and to the Federal Do Not Call (DNC) list. The problem is that you won’t actually find it clearly stated within the text of the TCPA, because the FCC text message regulations which apply the TCPA to SMS marketing were codified in an enforcement advisory issued by the Federal Communications Commission (FCC) in November of 2016.

The TCPA provides for clearly defined penalties for telemarketing to a phone number that has been registered with the Do Not Call (DNC) list; those same penalties apply to sending SMS marketing to a mobile number that is on the DNC. These penalties are known as statutory penalties, which means that they are actually defined within the statute, so the penalty amounts are very straight-forward: if you make a marketing call or send an SMS marketing text message to a number that is on the DNC list, you are liable for up to $500 for each SMS message sent, to each and every phone number that is on the Do Not Call List, and if you knew or should have known that the phone number was on the DNC list, those penalties can triple to $1500 per message per phone number. As you can see, this can mount up quickly to hundreds of thousands, or even millions, of dollars. And here’s the thing, if you are doing SMS marketing, then you always “should have known” if a phone number was on the DNC list, because you should be checking the DNC list before sending text message marketing to a given telephone number.

The only defense against a claim that you have violated the TCPA by sending an SMS marketing text message to a phone number listed in the Do Not Call list is being able to produce clear, verifiable consent from the owner of that phone number, giving you permission to send them marketing messages by text message. Period.

This is why, if you are going to do SMS marketing, it’s important to use a service that is conscientious about this, that cares about this, and that helps you to make sure that you do not run afoul of this law.

Below is the text of that FCC Enforcement Advisory that makes clear that the TCPA applies to SMS marketing.

Text of the TCPA as it Applies to SMS Text Marketing Messages and the Do Not Call (DNC) List

The FCC has stated that the restrictions on making autodialed calls to cell phones encompass both voice calls and texts. Accordingly, text messages sent to cell phones using any automatic telephone dialing system are subject to the Telephone Consumer Protection Act of 1991 (“TCPA”). The term “automatic telephone dialing system” (or “autodialer”) covers any equipment that has the capacity to store or produce numbers to be dialed and dial them without human intervention but does not need to have the present ability to do so.

The TCPA places limits on autodialed calls and prerecorded- or artificial-voice calls to wireless numbers; emergency numbers; guest or patient rooms at hospitals, health care facilities, elderly homes, or similar establishments; and to any service for which the called party is charged for the call. The FCC’s corresponding rules restrict the use of prerecorded-voice calls and automatic telephone dialing systems, including those that deliver robotexts. The FCC’s Enforcement Bureau will rigorously enforce the important consumer protections in the TCPA and our corresponding rules. We expect this Advisory will facilitate compliance with the law and rules by those who initiate robotexts to mobile devices.

Restrictions on Robotexts: The TCPA prohibits autodialed calls or text messages, as well as prerecorded calls, unless made with the prior express consent of the called party, to any telephone number assigned to a cell phone or other mobile device (such as a pager), unless the calls or text messages are: (1) made for emergency purposes; (2) free to the end user and have been exempted by the Commission, subject to conditions prescribed to protect consumer privacy rights; or (3) made solely to collect debts “owed to or guaranteed by the United States.”

Consumer Consent: Those contending that they have prior express consent to make robotexts to mobile devices have the burden of proving that they obtained such consent. This includes text messages from text messaging apps and Internet-to-phone text messaging where the technology meets the statutory definition of an autodialer. The fact that a consumer’s wireless number is in the contact list of another person’s wireless phone does not, by itself, demonstrate consent to receive robotexts. Further, recipients may revoke their consent at any time using any reasonable method.When a recipient of an autodialed text has revoked consent to receive future robotexts, the text sender may immediately send one final autodialed text to confirm the recipient’s opt-out request.

Advertising Robotexts: Prior express written consent is required for autodialed texts that include or introduce an advertisement except in certain limited circumstances. Even if a person has provided such consent, however, his or her later opt-out request requires the sender to stop sending text advertisements.

Robotexts to Reassigned Wireless Numbers. The Commission has determined that when a caller reasonably relies on prior express consent to robocall or robotext a wireless number and does not discover that the number has been reassigned to another party prior to making the call or text, the caller is not liable for the first call or text going to the called party who did not provide consent. They are, however, liable for any continued calls or text messages to a reassigned number after the initial call or text, regardless of whether or when they learn of the reassignment.

Enforcement: Robotext violations are subject to enforcement by the FCC, including forfeiture penalties up to $18,936 per violation,18 and state enforcement agencies.

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