Over the past few years, text message marketing has become one of the most powerful and popular tools in the marketer’s toolbox. Simply put, sending carefully-worded text messages to target customers can be a powerful way to spread your brand’s messaging, to raise interest, even to drive sales.

One thing every text message marketer should be aware of, though, is the regulatory environment. There are a number of federal laws in place to protect consumer privacy, to ensure your text message recipients have the power to decline ongoing messaging, and to ensure nobody ends up receiving offensive or explicit content that they didn’t ask for.

For small business owners or marketing teams looking to succeed with text messaging, it’s crucial to have a keen understanding of the broader regulatory environment.

What Is Text Message Marketing Compliance?

First, let’s get the lay of the land. When we talk about text message marketing compliance, exactly what are we talking about?

Simply put, text message marketing compliance refers to the body of laws and regulations that apply to businesses that wish to send SMS or text messages directly to their customers’ phones. These laws and regulations exist to ensure users are not inundated with spam, and to protect consumer privacy.

There are several specific regulations that businesses should be aware of, but the most famous and consequential is probably the Telephone Consumer Protection Act (TCPA). Acting as a restriction on telemarketing communications, this law has some implications for texting, primarily with respect to confidentiality and data collection. Basically, the law puts some parameters around how you can communicate with your customers, and what you can do with any names, phone numbers, and other private information that you collect.

While different rules and regulations all have their own nuances, you can really break down text message marketing compliance into a couple of big-picture concerns. These concerns are:

• Business entities must make sure they have a customer’s permission before sending them anything via text. Additionally, business entities must be certain that customers know what types of information they are agreeing to receive.
• Additionally, business entities must respect any consumer’s wishes to opt out of any future or ongoing text messaging.

Text Message Marketing vs. Email Marketing Compliance

For marketers who have spent any amount of time working with email, these rules and regulations should sound fairly familiar. In fact, text message marketing compliance and email marketing compliance have a great deal of overlap. The rule about providing a way for customers to opt out, for example, is much the same as what you’ll find in email marketing regulations.

The most significant distinction between text message marketing compliance and email marketing compliance pertains to timing. You can legally send emails at any hour of the day, but there are some important restrictions on when you can send marketing texts. Basically, marketers cannot send texts during times of the day that might prove disruptive to consumers’ lives; for example, you can’t text at midnight because most people are asleep at that hour.

Why Does Text Message Marketing Compliance Matter?

It’s important to understand that, while text message marketing compliance is primarily about protecting consumers, it also offers many advantages to business owners. For example, complying with text message marketing laws actually helps to ensure that your messages reach interested consumers who have opted-in to your brand communications, and that your messages arrive at a time when your recipients can actually see, read, and absorb them.

Noncompliance with these laws can hurt your business in a number of ways. Some of the potential consequences for noncompliance include:

• You may find yourself facing significant legal fees, penalties for not following the rules.
• You may also find your company getting “blacklisted,” effectively losing your ability to interact with any customers via text or SMS.
• Finally, there can be significant reputational damage. Simply put, consumers will not feel much fondness for companies that are constantly sending out unwanted or unasked-for spam.

These are just some of the reasons why it’s important for small business owners and marketing teams to be aware of the text message marketing regulatory landscape.

A Closer Look At Text Message Marketing Compliance

To ensure compliance, business owners and marketers should know some of the specifics of the TCPA, as well as guidelines put forward by the Cellular Telecommunications Industry Association.

Here are some highlights:

• It’s illegal to do any kind of cold texting. In other words, there’s never a time when your business should be sending text messages to customers who have not agreed to receive them.
• There are also certain ways of accruing customer phone numbers that are not acceptable. For example, it is illegal to purchase contacts. It’s also illegal to scour the Internet for phone numbers and then send text messages to those numbers. Basically, it’s illegal to obtain a customer’s phone number via any method they have not approved of.
• It’s advised that marketers provide clear calls to action for anyone thinking about signing up to receive text messages. Basically, let customers know what they’re signing up for and what they should expect. This leads to a much smoother, more positive customer experience.
• It’s also important to ensure that all marketing texts include a clear way to opt out, and that they indicate the name of the business or brand on whose behalf the text has been sent.

Use An LLC To Keep Your Company Safe

Speaking of protecting your business, any regulatory environment creates the opportunity for legal friction. Even if you’re diligent in obeying these laws and statutes, you may still get hit with an allegation, or even with litigation. As such, it’s wise to invest in risk mediation.

One of the best ways to manage your business’ legal liability is to register as a Limited Liability Company, or LLC. An LLC allows you to keep business interests separate from your personal ones, which can significantly limit your risk exposure.

The specific steps for registering your business as an LLC may vary from state to state, but the typical checklist looks like this:

• Make sure you have a Registered Agent. Your Agent must be in the same state as your LLC; so, when starting an LLC in California, it’s important to seek an Agent with a California mailing address.
• File Articles of Organization with your state of registry. This will also mean paying the state registration fee, which may be anywhere from $20 to $300, depending on where you are.
• It’s wise to create an Operating Agreement, outlining how you’ll share duties and split profits with any potential business partners.

Text Message Marketing Compliance: Some Common Mistakes To Avoid

Another way to think about text message marketing compliance is to be aware of some of the most common pitfalls. Here are some things that all marketers and small business owners will wish to avoid.

• Failing to confirm the recipient’s age before texting them about restricted products. It’s illegal to send minors any text messages about age-restricted products. So, before texting about beer or wine (for instance), it’s vital to obtain the consumer’s age confirmation, validating that they are 21 or older.
• Sending shopping cart recovery texts. It’s common for marketers to email customers who add products to an e-commerce shopping cart, then don’t complete a transaction. Note that this is illegal to do with text messaging unless you clearly indicate to consumers at sign-up that these messages may be sent. 
• Not offering a way for customers to opt out. Again, it cannot be stressed enough: You’ve got to provide a clear and easy way for customers to tell you when they no longer wish to receive marketing texts.
• Not getting consent. The most common text message marketing compliance error by far is failing to get consent from potential customers.

Getting Consent for Text Message Marketing

When it comes to asking for consent, there are a few guidelines that can not only ensure legal compliance, but also reduce any friction in the customer experience. General tips and best practices include:

• When asking for consent, use clear language, letting people know the types of messaging they can expect to receive. Also make it clear that they will have the option to opt out at any time.
• If you’re asking customers to check a box in order to receive text messages, make sure that box is unchecked by default.
• Keep records of consent, just in case any legal challenges or consumer complaints do arise. This is an important way to protect your business.

Keep Text Message Marketing Compliance in Mind

For small business owners and marketing teams, texting can be a powerful tool. To keep that power in check, be mindful of the regulatory environment. Always make text message marketing compliance a major priority.