The Telephone Consumer Protection Act (TCPA) governs text marketing campaigns because sending a text message is considered to be making a “call” to the mobile phone number of the recipient.  The TCPA imposes certain restrictions on “calls” made by an “auto-dialer” and most bulk texts are sent using automated technology that could be considered an “auto-dialer” for purposes of the TCPA.  Therefore, the best practice is to have the consent of the recipient to receive texts from your business, whether your messages are informational or promotional in nature, but the type of consent required may vary.  A text message sender also must honor any reasonable requests by the recipient to withdraw their consent to keep receiving text messages.  And, if a mobile number is reassigned to a new person, the consent is no longer valid and you can only message the new owner of the number by mistake one time.  Here are some tips for text marketing best practices:  

Tip #1:  Make sure you clearly understand the PURPOSE of the text message you are sending

• Purpose of text message determines type of consent needed: CONSENT is ALWAYS required when “dialing” MOBILE telephone numbers using an “auto-dialer” and most bulk texts are sent using automated technology that could be considered an “auto-dialer” for purposes of the TCPA.
• CONSENT for INFORMATIONAL ONLY text messages (g., confirm opt-in/opt-out status, appointment reminder) sent to a MOBILE (wireless) telephone number can be ORAL OR WRITTEN.
• PRIOR, EXPRESS, WRITTEN CONSENT is required to send MARKETING TEXT MESSAGES.

Tip #2: If purpose of text message is MARKETING, then obtain EXPRESS PRIOR WRITTEN CONSENT from each recipients before sending the text message to them

• Express: DON’T bundle consent to receive text messages with other consents -- agreeing to receive text messages by agreeing to the website Terms of Service is not express consent.
• Prior: DON’T use a text message to request consent, only to confirm it.
• Written: for example, check an unchecked box; click an “I Accept” button in order to proceed.
• Disclose that the text messages are sent using automated technology and the consumer is not required to provide consent to receive marketing texts as a condition of purchasing your goods or services.

Best Practice: Use a double opt-in.  Example: if a consumer signs up on a website or by texting a message to your short code, send a confirmation message to the mobile telephone number before sending marketing text messages.

Tip #3:  Be 100% sure that message is INFORMATIONAL only before relying on exception to WRITTEN consent requirement.

• Err on the side of caution: any marketing content = a marketing text message
• Informational text messages require prior express consent - written or oral. Informational calls to a residential landline (wireline) number do not require consent.
• Consent is not required for a one-time informational text message sent immediately (within 5 minutes) after a consumer’s request for the message IF the text message contains only the information requested by the consumer.

Tip #4: Develop SYSTEM to TRACK CONSENT

• Retain consent records for no less than four years.
• Include in each record at least consumer’s name, wireless vs. wireline number, date and time of consent, type(s) of messages to which the consumer consented.
• Implement internal procedures to update consumer contact information in consent tracking system.
• Maintain and scrub mobile telephone numbers against business-specific and national Do Not Call lists, ported number lists and consent records.
• KEEP RECORDS UPDATED.

Remember: The message sender bears the burden of proving that the text message recipient gave the appropriate consent.

Tip #5: Develop a SYSTEM to track REVOCATION OF CONSENT and REASSIGNED NUMBERS

• Include “STOP” instructions and functionality in all text messages.
• Accept all revocation requests -- a revocation request made by “any reasonable means” is valid.
• Consider ways to enable customers to update contact information via text message; for example, a “WRONG” reply for a wrong number so the message recipient can report a wrong/reassigned number.

A text message sender only has one chance to send a text message to a wrong number regardless of whether that consumer responded. KEEP RECORDS UPDATED.

Tip #6: Best practices for Text Marketing program set up and campaign creation

• Always identify the sender, i.e., the business for which the text messages are being sent, regardless of program purpose.
• Let consumers know how many messages they will likely receive from you and at what frequency (whether marketing or informational)
• Include “HELP”, STOP” and other common simple instructions and functionality in all text messages.
• Provide a customer service toll-free number, email address or URL, or explain how to use the “HELP” functionality to get assistance.
• Clearly communicate all material terms and conditions of the program and provide a link to full terms and conditions.
• Let consumers know if there are additional costs to participating in the program, including that their carrier may charge them for receiving messages (“Msg&Data Rates May Apply”)
• Select keywords for use with your SMS short code that relate to your business, are memorable and do not violate text marketing carrier standards.
• Don’t include SHAFT content (Sex/Hate/Alcohol/Firearms/Tobacco & vape) in your SMS/Text marketing campaign messages.

For more information about Telephone Marketing in general, see Marketing Best Practices:  Telephone Marketing.  For more on Text Marketing restrictions from the Federal Communications Commission (FCC), see https://www.fcc.gov/general/enforcement-advisories for EA2016-06, from 11-18-2016.  

This “Best Practices” content is provided for convenience and information only and is not intended as legal advice.  We do not claim that this information represents an accurate summary of the laws in this area or that it will be updated for any changes.  Please consult an attorney for questions about your compliance with applicable laws.