Types of marketing messages
Any text message sent by a company to an individual is considered a marketing message. However, under this broad umbrella term, there are three types of marketing messages that businesses can send: conversational messages, informational messages, and promotional messages.
Depending on the type of message, different levels of consent are required to ensure that personal text message privacy laws are being adhered to.
The biggest thing to consider with text message marketing is that consumers must always have an explicit option to opt out of future communication. The opt-out option must be clearly stated in your business's privacy policy or somewhere that is easy for consumers to find.
Conversational messages
Conversational messages are just that - a conversation between a consumer and a company. This will generally be a series of back-and-forth messages, most often initiated by the consumer who may be reaching out to a company for something specific.
Because the consumer often reaches out initially to the business, consent is implied. This implied consent makes conversational messaging the simplest method to ensure the appropriate laws are followed.
But still, even with implied consent, an opt-out option must be available that enables the individual to opt out of receiving any more messages.
An informational message is used to convey information to a consumer. These are often used by offices to confirm appointments and do not require any return message from the consumer.
For a company to legally transmit informational messages to a consumer, it is necessary to obtain express consent from the receiving party. This means that the business has asked for and received permission from the consumer to communicate via text messaging.
Promotional messages are those that are sent to consumers with some sort of offer or call to action. Often, these messages will include a link to the company's website or a promotional code to be used inside a business.
Prior express written consent is required to communicate with consumers via promotional text messages. This is a step beyond the express consent needed for informational messages and involves an actual document that has been presented by the company to the consumer, with the consumer signing the document and returning it.
Text messaging marketing laws
SMS marketing laws fall under two primary federal laws, the Telephone Consumer Protection Act and the CAN-SPAM Act. These laws are applicable to different things, but both cover SMS and MMS messaging.
Telephone Consumer Protection Act
The TCPA was enacted in 1991 and applies to automatic means for communicating via telephone, fax, and text unless express written consent has been granted. This act prohibits businesses from going through a list of numbers and automatically calling or texting them.
However, if an individual has provided consent to be contacted via automatic means, this law allows for that. Again, the appropriate level of consent must be obtained, and the consumer must always have the right to opt out of future communication.
CAN-SPAM Act
The CAN-SPAM Act regulates commercial email messages, including sending emails to cellular phones. Under the law, these messages must include specific details indicating they are an advertisement, a physical address, and a clear message providing opt-out options.
Cellular Telecommunications Industry Association Guidelines
The cellular industry also has data protection regulations in place to protect consumers. These laws exist to help protect cellular users from several things, including unsolicited text message marketing from businesses.
Your business must follow these guidelines to be able to continue using cellular communication when permitted, assuming you’ve obtained consent from the receiving party.
Express written consent
As stated, express written consent is the highest level of consent required by a company to communicate with a consumer via text messaging. Often, it is recommended that companies obtain written consent from consumers to ensure that any legal challenges can be addressed.
Text messaging laws by state
When it comes to text message marketing, in addition to federal laws, some states have their own explicit laws restricting the use of SMS messages from businesses. Just as it is important for companies to follow federal laws, being aware of individual state laws is equally as important.
Currently, 13 states have their own text message marketing laws. Because businesses operate across state lines, they also need to adhere to local laws, even if they are not physically located in the same state as the consumer.
In some instances, these laws are applicable to people within a state, whether they are considered residents of that state. Therefore, a business should err on the side of caution when approaching state-level laws regarding text messaging marketing.