Text Messaging Laws Your Business Needs to Know

Text Messaging Laws Your Business Needs to Know

text message compliance

Updated December 16, 2020

Staying complaint with text message marketing laws when sending mass text messages is crucial to the longevity of your marketing efforts, especially in 2021 as text message marketing draws more awareness. Growing your text list, increasing sales, and strengthening customer relationships should always be your main text marketing goals but not at the expense of your company’s integrity.

Now’s the time to review illegal practices and make necessary changes. You might not have even been aware that some of the ways you are operating your text marketing campaigns are actually illegal. That’s why you should do a quick audit your text marketing processes. Here’s what to know about text laws and how you can operate above the board.

Who writes text laws?

So, who creates regulations for text marketing anyways? When it comes to business texting, there are several gatekeepers that set the laws. Here’s what you need to know about each group within North America:

  • Industry regulators: Governments in both Canada and the United States have created legislation that regulates business texting. In addition to that, some industry associations have also created their own rules to help self-monitor. Here are important players in this area to know:
    • The Federal Communications Commission (FCC): The FCC regulates media communications across the United States. You know when citizens lodge complaints if something edgy happens during a Superbowl halftime performance? They’re lodging them with the FCC. The FCC is responsible for making sure media communications in the United States remain within a certain scope of acceptable behavior.
    • The Federal Trade Commission (FTC): If someone is scamming you through a television ad or a text message, complaints of this nature (in the United States) will go to the FTC. The FTC is the regulatory body that enforces national laws in these areas.
    • Canadian Radio-television and Telecommunications Commission (CRTC): This is a federal agency within Canada that governs, among other things, the internet and electronic messages. The CRTC sets the Canadian laws that those sending business text messages within Canada have to adhere to.
    • Cellular Telecommunications Industry Association (CTIA): This is an industry group that help create legislation for telecommunications companies to follow and helps enforce some regulations. It is comprised of leaders in the telecommunications field who draw on their collective experience to advise on policy.
    • Mobile Marketing Association (MMA): This is another industry group that helps create policy that guides mobile marketers, advising on laws for text message marketing.
  • Mobile carriers: Mobile carriers are companies such as Telus and Bell (in Canada) or T-Mobile, AT&T and Sprint (in the United States). Mobile carriers don’t technically make the laws, but they can have a big influence on how text message marketing is carried out in practice, which is why they’re important to include in this conversation.
  • Messaging providers: This is the category SlickText is in — we’re a text blast service that allows you to send mass business text messages. It’s our responsibility to make sure the text message marketing laws are carried out in practice. This helps us protect our customers, and our own business.

What are the laws for text message marketing?

Both the United States and Canada have enacted laws that govern how text message marketing can be undertaken in their respective countries. Let’s take a look at each country’s laws.

The Telephone Consumer Protection Act (TCPA)

The TCPA governs all forms of telecommunications in the United States. When it comes to how the TCPA is relevant to mass texting, one of the most important elements of the law that you need to remember is that you need to obtain consent before sending an individual a text message from your business. There are several ways to obtain this consent, most commonly it’s done by having your customers sign up for your text list on your website or by clicking an opt in link. This written consent is very important, but usually simple to obtain and keep records of.


The CAN-SPAM Act provides an additional layer of clarity to the TCPA. CAN-SPAM stands for Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003. Long name. Here’s what it essentially entails:

  • You can’t have a misleading headers (this applies more to email marketing since you don’t have headers in texts, but important to know nonetheless).
  • You can’t have a misleading subject line.
  • You must be clear your message is an ad.
  • Let the recipient of the message know where you are.
  • You must give the recipient clear opt-out directions in case they wish to do so.
  • If someone opts out, you must honor this request — and within an appropriate time frame.
  • If you outsource your marketing, you need to pay attention to what your third party is doing.

Canada’s Anti-Spam Legislation (CASL)

Canada has legislation that is similar to the TCPA, but slightly different. It’s known as CASL. It still functions on the concept of consent, but the Canadian government recognizes two versions of consent:

  • Explicit consent: A person agrees in writing or orally to receive electronic messages from you. When the person withdraws explicit consent (such as by opting out) your agreement has been invalidated.
  • Implied consent: If a person gives you their contact information, they are essentially consenting to be contacted by you. Implied consent remains valid for two years by Canadian law.

Just like in the United States, Canadian companies must provide opt-out information and comply with opt-out requests.

Case law: Example text lawsuits

Text marketing might be the last kind of lawsuit you’re worried about as a business owner or marketing executive, but when executed in the wrong manner, it can get you in trouble with the law. Here are recent examples of text marketing mistakes that cost companies money.

1. Telford vs. Intellectual Capital Management: $28,000

In this 2015 case, Long Island resident William Telford sued Intellectual Capital Management because he claims the Muscle Maker Grill, who was using text marketing through the firm, contacted him repeatedly without his consent. There was no clear way for Telford to opt out of text messages and a federal statute awarded him $1,500 for all 19 unwanted text messages.

2. Esparza vs. Smartpay Leasing Inc: $8.7m

In this 2019 class action lawsuit, $8.7 million was awarded to members of the class who claimed they received spam texts which they had no means of stopping. The class included people who received texts from Smartpay Leasing and also named their text message marketing vendor Twilio Inc. Even though members of the class replied “stop,” the messages didn’t end. The lawsuit, which settled in September 2019, was filed in June 2017. It included texts sent between September 29, 2015 and June 13, 2017.

3. Two real estate brokerages: pending 

Two separate lawsuits filed in South Florida in April 2019 are both currently seeking class action status for alleged spam text marketing from two separate real state brokerages. In these cases, spam texts were traced back to two separate agents at Caldwell Banker and Marzucco Real Estate. The lawsuit lists text messages sent by real estate agents that allegedly violate the TCPA.

4 Ways your business might be breaking text laws

Is text marketing illegal? The practice of mass SMS marketing itself is perfectly legal, but there are some restrictions for how you must go about conducting your text marketing. You probably won’t get jail time for breaking these rules, but you could face lawsuits and fines that significantly handicap your business goals. While some business texting services will turn a blind eye to these tactics, the most reputable ones are serious about making sure your text message marketing campaign is a win-win for both you and your subscribers. In the end, these rules are in place to ensure that and, even if they weren’t legal rules, they’d probably prove to be great best practices.

1. You add phone numbers to your text marketing list without expressed permission

You need to get consent to add numbers to your text marketing list. It doesn’t matter if you’re sending with a random 10-digit number or an SMS short code. Failing to do so is not only is this bad practice, it’s completely illegal. You absolutely cannot add phone numbers to your list without expressed written or verbal permission. Although verbal permission does apply, we always recommend you get something in writing, just in case you have to prove permission at a later date.

This applies even if you’re using an old list of text subscribers that your company might have collected before you got there, or that you collected years ago before you knew you needed to have permission. Keep in mind that you also can’t add numbers from people in your company’s database who use your services or have purchased from you but who haven’t specifically said they want text marketing messages from you.

What to do instead: There are four ways you can get subscribers to opt in to your text list. You can create paper records of them opting in, which might be useful if you’re working an event or collecting subscribers on the go. Alternatively, you can have subscribers opt-in via a form on your website. SlickText makes it easy to create a form through our business texting platform and embed it directly into your website. You can also have users text-to-join manually or click and opt-in link which automatically populates all the text-to-join information in their cellphone

2. You leave out a compliance statement in your opening auto reply

The auto reply that lets people know they’re joining your text list has to contain specific information about what they can expect when you send them texts. This is an absolute necessity in order to properly adhere to the guidelines the CTIA has set forth when it comes to upholding the laws of the 1991 Telephone Consumer Protection Act.

What to do instead: Make sure you have an auto-reply that goes over all the necessary compliance details. If you’re using SlickText, this auto-reply is generated for you and all you need to do is customize it. This statement could read something such as, “Receive up to 4 MSGS a month, MSG and data rates may apply. Text STOP to cancel.”

3. You don’t include opt out directions in your initial auto reply 

No one wants to feel trapped into receiving marketing messages from you, even if they really like you at the moment. Have you ever tried to unsubscribe to email newsletters and not been able to figure out how? That how people will if you don’t give them specific instructions on how they can stop receiving text messages from you. Maybe they’ll never want to stop, but what’s true is that most people definitely at least want to know how to stop if they need to.

What to do instead: You must always give your subscribers directions on how to unsubscribe from your list. If you trap them into opting in, or staying on your text marketing list, you are breaking text marketing law. You don’t have to be elaborate. Simply writing something such as, “Text STOP to cancel,” is enough.

4. You don’t honor your stated frequency

When a subscriber first opts in to your list, they will receive a simple compliance statement detailing how many messages they can expect to receive. If you break this frequency, even by one message, you break their trust. On top of that, this bad habit could result in some serious legal trouble. If you consistently go over the stated frequency, this could result in spam complaints and the possible suspension of your short code.

Consumer research shows that customers react poorly if they suspect you have spammy marketing practices, so use your best judgement when it comes to how often you’re sending out text messages. Surveys show customers want brands to contact them in ways that are appropriate and helpful. Try to spend less time advertising to your customers and more time thinking of simple but powerful ways you can truly help them through your mass texting service.

What to do instead: Plan your promotions in advance so you know what texts you’ll send and when. Make a commitment  to stick to this plan knowing that if you don’t there could be an uptick in opt-outs and even spam complaints or lawsuits.