How does the DNC list apply to SMS marketing?

The National Do Not Call (DNC) Registry applies to SMS marketing messages, especially those that are promotional. If a number is on the DNC list, you generally cannot send marketing texts to it unless you have obtained explicit consent from the subscriber.

What is "prior express written consent" for SMS?

Prior express written consent for SMS means a clear, unambiguous agreement from the consumer, documented in writing (electronically or physically), to receive specific types of text messages from your brand. It requires an affirmative action, like checking a box or texting a keyword.

Can consent override a DNC listing?

Yes, explicit consent from the consumer generally overrides their registration on the DNC list. However, it is crucial to maintain verifiable records of this consent to defend against potential claims of non-compliance.

Are informational texts subject to the same consent rules?

Generally, purely informational texts (e.g., appointment reminders, delivery notifications) may be exempt from the strict prior express written consent requirements that apply to marketing messages, but it is always best practice to seek and document consent for any form of recurring communication.

How often should I check my SMS lists against the DNC registry?

You should check your SMS lists against the DNC registry regularly, ideally before each campaign send. The registry is updated frequently, so consistent verification helps maintain compliance.

What are the SMS marketing rules regarding consent and the Do Not Call list? - Compliance - Email deliverability - Knowledge base

Q: What are the penalties for violating SMS marketing rules?

Violations of the TCPA (Telephone Consumer Protection Act) can result in statutory damages of $500 per message, or up to $1,500 per message if the violation is willful or knowing. Individuals can also sue businesses directly under the TCPA.

SMS marketing offers a direct and immediate way to connect with your audience, but it comes with a strict set of rules that marketers must follow. Unlike email, SMS marketing operates under specific regulations designed to protect consumers from unwanted messages, primarily focusing on consent and adherence to federal laws and industry guidelines.

Navigating these rules, especially those concerning consumer consent and the Do Not Call (DNC) list (also known as a blocklist), is essential. Failure to comply can lead to significant penalties, impacting your brand's reputation and financial stability. Ensuring your SMS strategy is compliant from the outset protects both your business and your subscribers.

At the core of compliant SMS marketing is explicit consent. This is a critical distinction from other marketing channels, as simply having a phone number or even an email opt-in does not grant permission to send marketing texts. The standard required is typically prior express written consent, which implies an unambiguous agreement from the consumer to receive specific types of messages from your brand.

To be considered valid, consent must be clearly disclosed and actively given. This means using mechanisms such as a checkbox on a web form (not pre-checked), a keyword sent to a shortcode, or a clearly visible sign-up at a physical location. The disclosure should specify what kinds of messages the subscriber will receive (e.g., promotional offers, updates, alerts) and the frequency of messages. It's also important to confirm that consent is not a condition of purchase.

Beyond obtaining consent, the ability to prove that consent is paramount. Maintaining meticulous records of how and when each subscriber opted in, including timestamps, IP addresses, and the exact language presented at the time of opt-in, is crucial. This documentation serves as your primary defense if a subscriber ever claims they did not provide consent or that their consent was improperly obtained. This is similar to how email consent is managed, but with heightened stakes in SMS.

Key consent elements

Clear disclosure: Inform users precisely what they are signing up for, including message types and frequency.
Specific purpose: Obtain consent for SMS marketing specifically, not just for emails or general communications.
Active opt-in: Require an affirmative action, such as texting a keyword, checking a box, or filling out a form field. Pre-checked boxes are generally not sufficient.
Record-keeping: Document the consent process thoroughly, including date, time, and method of opt-in.

The national Do Not Call registry

The National Do Not Call (DNC) Registry is a government-managed blocklist designed to give consumers a choice about whether to receive telemarketing calls. While initially focused on voice calls, its protections have been extended to include SMS marketing messages, especially for promotional content. This means that if a phone number is on the National DNC Registry, you are generally prohibited from sending marketing texts to it unless you have obtained explicit consent.

It's crucial for businesses to regularly check their SMS marketing lists against the National Do Not Call Registry. Even if you have a number from a customer, if it's on this blacklist and you lack explicit consent, sending them marketing messages could lead to a violation. The Federal Trade Commission (FTC) provides guidance on this topic for businesses to ensure compliance.

However, there's a significant nuance: explicit consent generally overrides a DNC listing. This means if a consumer has registered their number on the DNC list but then provides your business with prior express written consent specifically for SMS marketing messages, you are permitted to send them. The key here is the ability to demonstrate and prove that consent, which circles back to robust record-keeping practices.

Scenario	DNC List Status	Consent Status	Legality of SMS
Marketing SMS	On DNC	No Consent	Illegal
Marketing SMS	On DNC	Explicit Consent	Legal (with proof)
Informational SMS	On DNC	Consent Not Required (Generally)	Legal

Understanding TCPA and state regulations

The primary federal law governing SMS marketing in the United States is the Telephone Consumer Protection Act (TCPA). This act regulates unsolicited telemarketing calls, faxes, and text messages. It requires businesses to obtain prior express written consent before sending marketing SMS messages, particularly when using automated dialing systems. The TCPA also incorporates the DNC Registry into its enforcement mechanisms.

Violations of the TCPA can result in significant financial penalties. Businesses found in violation can face statutory damages of $500 per message, or up to $1,500 per message if the violation is deemed willful or knowing. These penalties can quickly accumulate, leading to substantial legal liabilities. Furthermore, the TCPA allows for a private right of action, meaning individuals can directly sue companies for violations, making compliance failures particularly risky. There are many stories, like this example from CNET, where individuals have successfully taken legal action.

While the TCPA sets the federal standard, some states have their own specific regulations regarding SMS marketing, which may be even stricter. For example, Connecticut has introduced laws that explicitly add promotional SMS to its state Do Not Call registry rules. Staying informed about both federal and state-level requirements is essential for comprehensive compliance. This is similar to the complexities involved when sending email to SMS gateways.

Consequences of non-compliance

Failing to adhere to SMS marketing rules, particularly the TCPA and DNC regulations, can lead to severe repercussions. These include substantial monetary fines, potential class-action lawsuits, and significant damage to your brand's reputation and deliverability. The FCC actively pursues violations, making proactive compliance essential to avoid legal and financial troubles.

Implementing best practices

Beyond understanding the legal landscape, implementing robust best practices is key to maintaining a healthy SMS marketing program. Regular list cleaning and phone number validation are crucial. This not only helps ensure you are not sending messages to invalid numbers, which can waste resources, but also identifies numbers on the DNC list or those that have opted out. Keeping your contact lists up-to-date minimizes the risk of compliance breaches and improves overall message deliverability.

In addition to checking against the National DNC Registry (a type of blocklist), businesses should maintain their own internal "do not contact" (or blacklist) lists. These lists should include any subscribers who have explicitly requested not to receive messages from your brand, regardless of their DNC registration status. Honoring these requests promptly and completely is a fundamental aspect of consumer respect and compliance, helping you avoid issues like being added to an email blacklist.

Finally, always provide clear and easy-to-use opt-out mechanisms in every marketing message. This typically means allowing subscribers to reply with keywords like "STOP," "END," or "UNSUBSCRIBE." Processing these opt-out requests immediately is not only a legal requirement but also a best practice that builds trust and maintains a positive sender reputation. Effective opt-out processes are crucial for preventing deliverability issues and avoiding complaints.

Proactive compliance

Granular consent: Obtain explicit, documented consent specifically for SMS marketing messages.
Regular list hygiene: Continuously clean your lists and validate phone numbers against DNC and internal opt-out lists.
Clear opt-out: Provide easy, always-available opt-out methods in every message.

Reactive risks

Litigation: Risk of private lawsuits from consumers for TCPA violations.
Heavy fines: Substantial financial penalties per message, potentially reaching thousands or millions of dollars.
Reputation damage: Negative impact on brand perception and SMS deliverability rates.

Ensuring long-term SMS program health

Mastering SMS marketing compliance, particularly around consent and the Do Not Call list, is non-negotiable for any business. It's not merely about avoiding legal pitfalls and hefty fines, but about cultivating a trustworthy and respectful relationship with your audience.

By prioritizing explicit consent, diligently managing your DNC obligations (or blocklist management), and implementing robust compliance practices, you can build a highly effective SMS program that reaches engaged subscribers without risking your brand's integrity or financial well-being. Continuous vigilance and adaptation to evolving regulations will ensure your SMS marketing remains both impactful and compliant.

Views from the trenches

Best practices

Always verify explicit consent, especially for marketing messages.

Regularly cross-reference your contact lists against the National Do Not Call Registry.

Maintain detailed records of how and when each subscriber provided consent.

Common pitfalls

Assuming email consent extends to SMS marketing without explicit confirmation.

Failing to regularly update contact lists against DNC and internal opt-out requests.

Underestimating the significant financial penalties for TCPA violations.

Expert tips

Utilize phone number validation services to ensure list accuracy and compliance before sending.

Implement robust systems for tracking and storing explicit consent for every SMS subscriber.

Educate your team on the specific nuances of TCPA and DNC rules to prevent accidental non-compliance.

Expert view

Expert from Email Geeks says that you must have 100% verifiable consent and must run numbers against the Federal Do Not Call list because the TCPA is very clear that sending marketing SMS to a DNC registered number leads to significant trouble, including a private right to action.

May 3, 2023 - Email Geeks

Expert view

Expert from Email Geeks clarifies that explicit consent specifically for SMS marketing overrides a number being on the Federal Do Not Call list.

May 4, 2023 - Email Geeks