Marketing

Opt-In Text Messaging Laws, Examples, and Strategies

Gary Serviss

Updated: Feb 15, 2022 · 5 min read

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opt in text messaging laws

Always get permission to text your customers. Considering the multitude of laws and governing bodies surrounding digital marketing, we’d consider this the first rule of opt-in text message marketing. So what would rule number two look like? Simple—see rule number one and double-check that you’re compliant in every way.

Right now, there are four organizations that govern wireless device laws (text message marketing included) in the United States: The CTIA — The Wireless Association, the Mobile Marketing Association, the Federal Communications Commission, and the Federal Trade Organization.

On top of that, there are federal and state laws also governing SMS (short message service) marketing guidelines.

Let’s take a look at a few laws in detail, cover some notable examples of companies that had their hands slapped, and explore how Keap’s text message marketing can help you stay creative and compliant when texting customers.

U.S. Legal Guidance for Opt-in Text Message Marketing

The Telephone Consumer Protection Act (TCPA)

The TCPA was passed in 1991 by the Federal Communications Commission (FCC), becoming one of the first laws to restrict telemarketing in any way. With an update in 2013, it now requires that companies and marketers get express written consent before sending text marketing materials. Some details:

  • Many would agree this law is the birthplace of opt-in text message marketing
  • All marketers must send a text identifying themselves providing opt-out instructions before any marketing messages
  • Commercial texting times are also limited to 8 am to 9 pm.
  • Failure to comply can result in a $500 fine per accidental infraction or $1,500 per willful infraction.

The CAN-SPAM Act (Controlling the Assault of Non-Solicited Pornography and Marketing Act)

Created in 2003, this law was designed to bolster and elaborate on the TCPA. In short, it protects people from receiving commercial text or email messages from companies with which they do not have an established relationship. Some details:

  • Marketers may not harvest email addresses or mobile numbers by buying spam email lists or scraping the Internet
  • Every commercial text message must be easily identified as a commercial message and consumers must be told how they can unsubscribe
  • Non-commercial entities, like nonprofits or candidates running for public office, need only verbal consent for text message marketing
  • Law enforcement agencies (though not consumers) can enforce CAN-SPAM with civil or criminal charges

The CTIA — The Wireless Association

Originally known as the Cellular Telecommunications Industry Association and the Cellular Telecommunications and Internet Association, the CTIA is a trade organization representing the wireless industry in the United States. It provides ongoing best practices and consultation on a variety of issues related to text marketing, such as:

  • Clear calls-to-action in commercial messages
  • Requiring opt-in and double opt-in text message marketing practices
  • The ability to easily opt-out for consumers
  • Easily viewable and accessible listing of policies for marketers
  • While the CTIA does not enforce any laws, it requires compliance to its policies for associated members

The California Consumer Privacy Act (CCPA)

Clearly, this law only covers one small area of the world, but it has had a huge effect on how marketers reach audiences in the most populous U.S. state. Enacted in July 2020, the law gives Californians power over the information businesses collect and use to market to them. It give them the rights to:

  • Know what information companies are collecting, including its intended and actual uses
  • Request companies to delete any of their personal data
  • Opt-out of any sales of their personal data to other companies
  • Request a full list of the company’s third-party data users
  • Not be discriminated against because of exercising their CCPA rights
  • Sue when companies are not in compliance with these rights

Notable Text Marketing Infractions

Quick note about this section: This isn’t about piling on or playing “gotcha’” with other companies. Most really do try to do their best. These examples simply show how important it is to stay in compliance and how easy it is to step out of bounds when you don’t understand the laws surrounding this important topic.

Square

This class action lawsuit alleges that Square sent text marketing messages to consumers who did not opt-in to the company’s loyalty program, but entered their phone number to get a text sales receipt from a vendor using Square. The lesson: Always ask for consent to send text message marketing materials, whether or not they are a part of your loyalty program.

Jiffy Lube

Jiffy Lube texted out a coupon for a pretty good deal: a one-time 45% off coupon for an oil change. The problem was that they used phone numbers from old invoices, rather than a list of customers who had opted-in. The lesson: Texting to numbers that have not opted-in can cost you $47 million in damages, like it did with Jiffy Lube. Yikes.

Kohl’s

The retailer sent a 15% off coupon after customers texted “SAVE” to a five-digit code. The problem was that Kohl’s also entered these customers in their Mobile Sales Alerts program, sending the offered coupon and another later on. The lesson: Scope of intent is important, so only enroll customers in the programs to which they consent and nothing more.

Staying compliant with Opt-in Text Message Marketing

As we see it, you can read up on the opt-in text message marketing laws, grasp them in all of their intricacies, share them with your teams so that they understand too, and operate in compliance once you check all those boxes. Or you can look behind door number two and choose a platform that offers text marketing and has covered all those complicated details for you.

With Keap’s text marketing, you can enjoy the confidence of built-in compliance, because Keap has handled all of the legal issues right in the platform. But don’t take our word for it. Dive into how opt-in and opt-out works for Keap users wanting to harness the power of text to reach more customers.

Pro tip: Many experts will tell you that you need to ask for opt-in right away, plus every 18 months or so. We suggest that, asking for opt-in under every new program or scenario you introduce to your text audience, and sharing opt-out language with every message sent, if possible.

Bonus Pro tip: When it comes to your mobile phone lists and opt-in text message marketing, always be scrubbing. You want to be totally sure each and every number on your list is compliant and up to date.

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