Understanding the Law: SMS

Understanding the Law: SMS

Full disclosure: We are not attorneys or experts in the law and this is not legal advice. Please consult your attorney and do your own due diligence if you have questions or issues.


Texts have become an indispensable part of our daily life. Why call the love of your life at work when all you want them to do is pick up a gallon of milk on their way home? Texts are quick and easy, and often a perfect way to communicate short, simple message to each other during our busy lives. They’re less obnoxious than a traditional advertisement and far less obtrusive than a phone call. What could be better for a marketing campaign, right?

Well, like everything else there’s a catch. It’s called SMS Compliance as spelled out under the Telephone Consumer Protection Act, and it’s the focus of the next part of our series on Understanding the Law. 

The first and possibly most important thing about complying with SMS is that you must receive written permission before you can send a contact ANY text, even ones that are informational only. You must clearly state that you’re seeking written permission to send them texts. It can’t be hidden in Article C, Subsection 5a of Paragraph 14 of a lengthy document written in hard-to-read font. You also aren’t allowed to bribe them. In other words, you can’t make receiving a particular product or service contingent on them signing up to receive texts from you. 

These rules apply even when you get the list from somebody else. Permissions aren’t inherited. For example, say you purchase the list from a third-party vendor. You must still get written permission from each and every person on that list before you can start texting offers to them. 

Your call-to-action must clearly state the terms and conditions of the offer. What are you going to be sending them? Tips for improving their daily life? Special offers? Alerts about new products? Coupons? Whatever it might be, you need to tell them. 

You must also include how frequently someone will be contacted, whether once a week, once a year or anything in between. Although most carriers now offer free texting, you must still advise them that message and data rates may apply. 

Finally, you must have an easy-to-follow link to the full set of posted terms and conditions. These conditions should include:

  • Your company’s contact information
  • Clear opt-out information 
  • Your company’s privacy policy

Once a contact signs up to receive your texts, the first thing you need to send them is a confirmation. Your confirmation should acknowledge that they opted-in and should once again state your company’s name and contact information, the message frequency, the fact that data rates may apply as well as instructions on how to opt-out. 

In addition to rules on how you can text someone, there are also rules on what you can text them. These rules aren’t particularly hard to understand. An easy way to remember them is the acronym SHAFT, which stands for sex, hate, alcohol, firearms and tobacco. There are a few exceptions to this rule, such as for bar owners advertising for ‘happy hour’, but even they must apply age restrictions on who can receive these texts. The Federal Communication Commission takes a very dim view on companies that violate the SHAFT rules and can issue a permanent ban on a company’s texting as well as impose fines. 

Texting is a great way to get the word out to potential customers. It’s fast, easy and has a great open rate. Just be sure to take advantage of this great marketing medium by staying in SMS compliance. 

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