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Text Message Or SMS Marketing: Staying Safe


You want to drive customers to your business. What better way to do that than to text message them? Send them texts about promotions, announcements, sales, information—text messaging is direct, immediate, and you’re guaranteed to have customers’ attention.

Except there’s one problem. Doing text message (or SMS) marketing the wrong way can get your company sued. For a lot of money.

The Telephone Consumer Protection Act

If you are looking to text your customers (actual or potential), there are a few rules to follow to keep your business out of trouble.

The first rule is to get specific, written consent to send SMS messages. This is the golden rule. Texting people without their permission is a violation of the telephone Consumer Protection Act (TCPA).

You need written permission to send SMS messages, although having a consumer check “yes” or something similar to a disclosure, is sufficient. Certainly, verbal agreements to receive texts are not sufficient.

You should also never assume that someone wants your texts, or because they are former or current customers, that you can text them. The fact that a customer gives you their cell phone number also doesn’t constitute consent to be texted under the TCPA.

Specific Disclosures

The written disclosure has to be specific, and disclose that the consumer or customer is agreeing to get texts. Simply agreeing that someone wants to get “notification” of special offers, or that someone wants to join a “mailing list,” or that someone wants to be “contacted” is not sufficient—the notice must specifically disclose that the consumer is opting in to receiving text messages.

You also need to live by your disclosure. In other words, if the disclosure says the consumer will only receive “updates,” or will only receive “3 texts per month,” going outside those parameters is a TCPA violation, as the NFL’s Buffalo Bills found out the hard way when they were sued after consumers opted into 5 texts per week, but ended up being sent 6-7 per week.

All Texts Count

These laws apply to all kinds of texts—not just advertising. For example, texting someone to update them on the shipping status of their product, or texting them to tell them that their products are in production aren’t marketing texts, but they still need the consumers’ consent under the TCPA.

Third Parties

The TCPA also doesn’t let you pawn off your obligation to a third party. Many unscrupulous marketing companies may tell you that they have “special ways” of marketing for you. If that company violates the TCPA, you are still responsible, even though it’s the company you hired that did the texting.

Only hire reputable marketing companies, and always ask about their policy of sending SMS messages to consumers, including asking how they get the phone numbers that they are texting.

Call the West Palm Beach business litigation lawyers at Pike & Lustig for help today in marketing your business safely, and keeping your company out of legal trouble.



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