Understanding text messaging laws is crucial for businesses that engage in SMS marketing. In this comprehensive guide, we will provide an in-depth overview of the legal landscape surrounding text messaging in the United States.

Table of Contents

• Introduction to Text Messaging Laws
• Federal Laws Governing SMS Marketing
  • Telephone Consumer Protection Act (TCPA)
  • CAN-SPAM Act
• State-Specific Text Messaging Laws
  • California
  • Texas
  • Florida
  • New York
  • Illinois
• Best Practices for Compliant SMS Marketing
• Conclusion

Introduction to Text Messaging Laws

Text messaging has become a powerful tool for businesses to reach customers and prospects. However, with great power comes great responsibility. To protect consumers from unsolicited messages, federal and state governments have enacted various laws governing SMS marketing.

Federal Laws Governing SMS Marketing

Two primary federal laws regulate text messaging in the United States:

Telephone Consumer Protection Act (TCPA)

The TCPA, enacted in 1991, is a federal law that restricts telemarketing calls, faxes, and text messages. It specifically prohibits the use of autodialers, artificial or prerecorded voice messages, and text messages without prior express written consent from the recipient.

Key TCPA requirements include:

1. Obtaining prior express written consent from recipients before sending SMS messages.
2. Providing a clear and conspicuous disclosure that the recipient will receive future text messages.
3. Including an easy-to-use opt-out mechanism in every text message.

CAN-SPAM Act

The CAN-SPAM Act is a federal law that regulates commercial email messages, including SMS messages sent to email addresses (e.g., [email protected]). The act requires that all commercial messages contain:

1. A clear and conspicuous identification that the message is an advertisement or solicitation.
2. A valid physical postal address of the sender.
3. A clear and conspicuous notice of the recipient’s right to opt-out of future messages.

State-Specific Text Messaging Laws

Some states have enacted additional laws that further regulate text messaging. Here are examples of text messaging laws in five states:

California

In California, the state’s Consumer Protection Against Computer Spyware Act prohibits the use of software to send unsolicited text messages without the recipient’s consent. Additionally, the California Invasion of Privacy Act prohibits the recording of telephone calls, including text message conversations, without the consent of all parties involved.

Texas

Texas prohibits unsolicited text messages under the Texas Business & Commerce Code. The code requires businesses to obtain express consent from recipients before sending any SMS messages. Additionally, the Texas Deceptive Trade Practices Act may also apply to deceptive or misleading text messaging practices.

Florida

Florida’s Consumer Protection Law and the Florida Telemarketing Act regulate text messaging in the state. Businesses must obtain prior express written consent from recipients and provide a simple opt-out mechanism. Moreover, text messages cannot be sent between 9 p.m. and 8 a.m. local time.

New York

New York state law requires businesses to obtain prior express written consent from recipients before sending text messages. Additionally, the state’s “Do Not Call” registry applies to both

telemarketing calls and text messages. Businesses must refrain from contacting any numbers listed on the registry without prior express consent.

Illinois

In Illinois, the state’s Automatic Telephone Dialers Act regulates the use of autodialers for text messaging. Businesses must obtain prior express written consent from recipients before sending SMS messages using an autodialer. Furthermore, the Illinois Consumer Fraud and Deceptive Business Practices Act may apply to deceptive or misleading text message marketing practices.

Best Practices for Compliant SMS Marketing

To ensure compliance with both federal and state laws, follow these best practices for SMS marketing:

1. Obtain express written consent: Always obtain prior express written consent from recipients before sending any text messages. Consent can be obtained through various means, such as online forms, written agreements, or SMS keywords.
2. Provide clear disclosures: Clearly disclose the purpose and frequency of the text messages, along with any potential fees or charges.
3. Include an opt-out mechanism: Make it easy for recipients to opt-out of receiving future messages by including a simple opt-out mechanism (e.g., “Reply STOP to unsubscribe”).
4. Maintain an internal “Do Not Contact” list: Keep an updated list of individuals who have opted out of receiving text messages and ensure they are not contacted in the future.
5. Monitor state-specific laws: Stay up-to-date on state-specific text messaging laws and adjust your SMS marketing practices accordingly.

Conclusion

Understanding and complying with text messaging laws is essential for businesses engaging in SMS marketing. By adhering to federal and state regulations, businesses can effectively reach their target audience while minimizing the risk of legal repercussions. Following best practices for compliant SMS marketing will not only protect your business but also foster trust and loyalty among your customers.