Summary
SMS marketing regulations, governed by the TCPA and CASL, require express, informed, unambiguous, and verifiable consent before sending promotional messages. While the Do Not Call list primarily targets telemarketing calls, maintaining proper consent for SMS marketing is crucial. Explicit consent overrides DNC status. Businesses must meticulously document consent, provide clear opt-out mechanisms, and honor opt-out requests promptly to avoid substantial legal penalties (up to $1500 per message) and reputational damage. Employing double opt-in processes enhances consent validity and improves list quality. Ethical SMS marketing hinges on compliant opt-in processes and avoiding user annoyance.
Key findings
- Express Consent: SMS marketing demands express, informed, and unambiguous consent.
- Consent Overrides DNC: Explicit consent for SMS marketing supersedes a recipient's presence on the Do Not Call list.
- TCPA & CASL Compliance: Strict adherence to TCPA and CASL regulations is essential to avoid legal penalties.
- Opt-Out Requirements: Clear and easily accessible opt-out mechanisms must be provided and promptly honored.
- Documentation is Key: Meticulous documentation of consent is vital for legal defense.
- Significant Penalties: Non-compliance can result in substantial fines and reputational harm.
Key considerations
- Affirmative Consent: Ensure consent is affirmative, freely given, and covers specific message types.
- Double Opt-In Process: Consider implementing a double opt-in process to enhance consent validity.
- Transparency: Maintain transparency with consumers about the purpose and frequency of SMS messages.
- Regularly Audit Consent: Periodically review and update consent records to ensure continued compliance.
- Consider User Experience: Prioritize a positive user experience to avoid user annoyance and maintain a strong brand reputation.
What email marketers say
12 marketer opinions
SMS marketing requires express, informed, and unambiguous consent from recipients, adhering to regulations like the TCPA and CASL. While the Do Not Call list primarily targets voice calls, maintaining consent is crucial, and explicit consent overrides DNC status. Businesses must meticulously document consent, provide clear opt-out mechanisms, and honor opt-out requests promptly to avoid substantial legal penalties. Double opt-in processes enhance consent validity and list quality.
Key opinions
- Express Consent Required: SMS marketing necessitates explicit, informed consent before sending promotional messages.
- DNC and Consent: Explicit consent for SMS marketing overrides a recipient's presence on the Do Not Call list.
- TCPA Compliance: Adherence to TCPA regulations is essential to avoid substantial penalties for non-compliance.
- Opt-Out Mechanism: Clear and easy opt-out mechanisms must be provided, with opt-out requests honored promptly.
- Documentation of Consent: Meticulous documentation of how and when consent was obtained is critical for legal defense.
Key considerations
- Consent Specificity: Ensure consent is specific to the types of messages being sent and is freely given.
- Double Opt-In: Consider implementing a double opt-in process to enhance the validity of consent.
- Timing of Messages: Be aware of restrictions regarding the timing of messages (e.g., sending messages only during permitted hours).
- CASL Implications: If operating in Canada, be aware of the implications of CASL (Canada’s Anti-Spam Legislation).
- Penalties for Non-Compliance: Understand the potential penalties for violating TCPA and other SMS marketing regulations, which can be substantial.
Marketer view
Email marketer from Reddit says it's vital to maintain a record of consent. If someone claims they didn't consent, you need to be able to prove they did. Also, ensure your opt-out mechanism is working correctly; failing to honor opt-outs is a quick way to get into legal trouble.
4 Nov 2021 - Reddit
Marketer view
Marketer from Email Geeks clarifies that consent overrides the DNC list. If someone provides explicit consent for SMS marketing, it overrides their presence on the DNC list. However, it's crucial to curate and store proof of consent to defend against potential TCPA claims.
23 Aug 2022 - Email Geeks
What the experts say
3 expert opinions
Experts emphasize that SMS marketing necessitates obtaining clear, affirmative consent that is freely given, specific, informed, and unambiguous, explicitly covering the types of messages to be sent. Non-compliance with consent requirements, primarily under the TCPA, results in significant fines ($500-$1500 per message) and reputational damage. Ethical and legal SMS marketing hinges on using compliant opt-in processes and gaining explicit permission to prevent legal repercussions and user annoyance.
Key opinions
- Clear Affirmative Consent: SMS marketing requires clear, affirmative consent that's freely given, specific, informed, and unambiguous.
- TCPA Penalties: Sending SMS messages without proper consent leads to significant fines under the TCPA, ranging from $500 to $1500 per message.
- Ethical Marketing Foundation: The foundation of ethical and legally compliant SMS marketing is based on obtaining consent.
- Reputation Impact: Non-compliance with SMS regulations leads to reputational damage, harming brand credibility.
Key considerations
- Compliant Opt-In: Use compliant opt-in processes to ensure explicit permission and avoid legal issues.
- Message Specificity: Consent must cover the specific types of messages to be sent, ensuring transparency.
- User Annoyance: Explicit permission is crucial to avoid user annoyance and maintain a positive brand image.
Expert view
Expert from Word to the Wise notes that the foundation of ethical and legally compliant SMS marketing is consent. You should use compliant opt-in processes, as explicit permission is important to avoid breaking laws and causing user annoyance.
9 Jan 2024 - Word to the Wise
Expert view
Expert from SpamResource emphasizes the importance of obtaining clear affirmative consent before sending SMS marketing messages. This consent must be freely given, specific, informed, and unambiguous. It also needs to cover the types of messages to be sent.
16 May 2023 - SpamResource
What the documentation says
5 technical articles
SMS marketing regulations, as outlined by the FTC, FCC, CTIA, CWTA, and Twilio, mandate prior express written consent under the TCPA and CASL before sending marketing messages. Compliance also necessitates providing clear, accessible opt-out mechanisms, maintaining consent records, and promptly honoring opt-out requests. Transparency and adherence to industry best practices are also essential for ethical and legally compliant SMS marketing.
Key findings
- Prior Express Written Consent: The TCPA and CASL require businesses to obtain prior express written consent before sending SMS marketing messages.
- Clear Opt-Out Instructions: Consumers must be given a clear and easy way to opt-out of receiving future messages.
- Adherence to TCPA and CASL: SMS compliance involves adhering to regulations set forth by the TCPA and CASL.
- Transparency: SMS marketing requires transparency with consumers, ensuring they understand the terms of consent.
- Importance of Record Keeping: Maintaining records of consent is crucial for demonstrating compliance and avoiding legal issues.
Key considerations
- Honoring Opt-Out Requests: Promptly honoring opt-out requests is critical to avoid legal complications and maintain a positive brand image.
- Industry Best Practices: Adhering to industry best practices for consent and opt-out mechanisms promotes ethical SMS marketing.
- CASL Compliance for Canadian Audiences: For marketing efforts in Canada, compliance with CASL's express consent and unsubscribe mechanism requirements is essential.
Technical article
Documentation from the CTIA (Cellular Telecommunications Industry Association) includes guidelines for SMS marketing, emphasizing the need for transparency with consumers and adherence to industry best practices for consent and opt-out mechanisms.
25 Jan 2022 - CTIA
Technical article
Documentation from Federal Communications Commission explains that the TCPA (Telephone Consumer Protection Act) is important here, which protects consumers from unwanted communications. You must have prior express written consent before sending SMS marketing messages.
2 Apr 2025 - Federal Communications Commission
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