WARNING: Text Message Marketing (SMS) Is Now “Illegal”

Categories: Uncategorized

Okay, so maybe it isn’t “illegal,” but if you’re doing SMS wrong, it could cost you as much as $1,500 in fines, per text.

Yes, you read that correctly…$1,500. Per. Text.

As of October 16, 2013, marketers who have not gained prior written consent from consumers to send them SMS marketing messages will potentially face fines of up to $1,500 per unsolicited message under the new TCPA guidelines.

In other words, if your current SMS strategy uses longer texts that may carry over to two different messages per user, this could get VERY pricey … that is, if you don’t adhere to the new rules.

Keep in mind — these guidelines impact not only every new opt-in that a marketer acquires, but also the existing names in their databases. Yes, your SMS opt-ins need to opt-in again. Otherwise, you could face a hefty class action lawsuit.

A quick look at the rules

We STRONGLY encourage you to review the updated rules, so you don’t find yourself out of compliance with the FCC. But, here’s a quick overview.

For ALL new text subscribers, you will need to adhere to the following:

  1. You now need express written and signed consent from all opt-ins to receive text correspondences from your company.
  2. Correspondence must state “consent to get texts not required OR condition of purchase.”
  3. Provide opt-out and help instructions.
  4. Indicate frequency of texts.
  5. Indicate that messages may come from autodialers/senders.
  6. Disclosure of possible carrier costs and fees.
  7. If directing to a landing page, any check box fields MUST be left unchecked.
  8. Content sent must match that requested by the initial opt-in.

Additionally, for all members of your current database, you will need to:

  1. Get new consent from ALL who did not do so previously.
  2. Share disclosure.
  3. Send a compliant text to re-establish opt-in.

How should you handle this?

When addressing these changes with your text recipients, it’s important to present the information in a way that conveys the point about opting in, without clouding the key messaging. In this case, it means explaining that you need their opt-in again, while reiterating your value proposition so they WANT to stay onboard.

First, let’s start out with what not to do. Take, for example, this text series from Redbox, a major video rental outlet:

On paper, based on what the FCC deems “best practices” for SMS marketing, this message IS compliant.

It covers the opt-in (or re-opt-in), provides a link to the details of the regulation, and gives clear instruction about how to stop messaging or how to get more information and help.

So, what makes it “less than effective?”

1. Excess Length

Redbox’s mobile marketing team seemed so hellbent on getting this message out there, its creator forgot to do a little nip/tuck work on the verbiage, and instead chose to send this as a two-part message (which will likely appear to the recipient out of order).

Had they just found a way to consolidate “Texts may be sent using an automatic telephone dialing system,” or “Consent not required for any purchase,” they could have squeezed this into one, (slightly) easier-to-consume text message.

Also, if they had a link that led to a clearly defined landing page, there would be plenty of room to get the point across, instead of wasting it with numerous, confusing links.

Speaking of which…

2. Lack of Context

The message opens with “Redbox: Reply LOVE now to keep getting our texts after 10/16 (linked).” Not only can this be shortened, but why are they asking me to do my own research by clicking the obscure, unclear “10/16″ link text? If I’m curious, I may click. But, more than likely I’ll have better things to do …

… like delete this message before I read any further.

Also, what does “LOVE” have to do with a DVD rental company, or its messages? Context-specific text, like “OPT-IN,” “TEXTME,” “JOIN” or anything else more action-oriented would convey a sense of urgency and motivate the reader to take a next step.

3. Confusing Language

Now, no one is going to confuse SMS for high art — it’s a medium of efficiency and near-real-time interaction. But that’s no excuse for poor phrasing or confusing language. The end of this text message leaves a lot to the imagination — a luxury most readers won’t afford you.

The message closes with “Reply STOP to cancel,HELP for help. Up to 2 msgs/week. New Terms: [LINK].”

The awkward phrasing (and again, lack of context) begs a few questions: First, should I expect two messages per week? Or, am I allowed to send just two help request messages per week? To a marketer, this may be clear. But, can we assume this on the part of the audience? Doubtful.

Secondly, what are the new terms about? Is this Redbox’s terms for sending? Is it FCC-related? Have I just entered into a new agreement? How is this link different than the “10/16″ link from the previous message?

Chances are, this could have been solved just by making one CLEAR link, rather than two ambiguous ones.

4. Hierarchy of Messaging

While 155-170 characters doesn’t afford you much space to be gracious, your brand must continue to be represented in ALL communications, regardless of medium. The team felt it would best convey urgency by outright telling readers to reply, following it with a small incentive.

Instead of hammering readers over the head, maybe Redbox should have considered reminding them why they would WANT to keep receiving messages.

Perhaps: “Redbox Alerts: Want to keep getting exclusive deals on top DVD rentals? Reply LOVE to confirm!”

Again, it’s far from artistic, but it clearly states a promise of ongoing value, with no ambiguity.

A better example…

Yesterday, my wife signed up for text alerts and discounts from 7-11 (which still serves the best coffee in the world, without requiring fluency in fake Italian to pick a beverage size). She followed the directions and received the following:

Here’s why this is a better message. First, it opens with a clear indicator of source. Even putting just “7-11″ before the message wouldn’t be as explicit in conveying the purpose of the text. When some companies offer multiple SMS marketing options, this little step helps reassure the recipient they signed up for this offer, and that it contains information relevant to their needs.

Next, they consolidate the approval to a “Y” rather than “Yes.” With such a limited character count, every free space matters. This leads to a clearly — and cleverly — defined value proposition.

Here, by replying “Y,” the user immediately knows they will be receiving exclusive coupons and alerts — up to eight times per month. Whether intentional or not, by indicating frequency, 7-11 actually managed to boost value through word placement.

What’s better than knowing you’re getting a deal? Knowing you’re getting eight of them, that’s what.

After succinctly stating opt-out and help options, 7-11 made a smart move to offer a very legible URL. While abbreviated links help preserve space, their random, disconnected appearance could hinder clickthroughs.

Instead, 7-11 created a short, but clear vanity URL that lets the recipient know it’s connected to the company website, and directly relates to their privacy standards. Upon clicking through, recipients can see the company’s entire SMS policy.

… but is it compliant?

7-11 seemingly did everything right, but these new TCPA regulations are stringent. And one key element missing from yesterday’s 7-11 opt-in text is that it doesn’t clearly indicate “consent to get texts is not required and/or a condition of purchase.”

The devil lies in the details here, folks.

Moving forward…

Our advice? Let a landing page do some heavy lifting for your incentives and promos. That’s not to say you shouldn’t offer calls-to-action or relevant info through your texts, but you must also be considerate of your recipients, not to mention the restrictions of the medium.

Even though you might think a promo-free text is a wasted endeavor, when space is at a premium, and FCC-mandated text at a maximum, it’s best to keep it simple:

  1. Clearly state the name of the sender and provide a distinct value proposition (don’t hide the opt-in)
  2. Provide opt-out instructions
  3. Indicate frequency of texts
  4. Disclose carrier costs and fees
  5. Include assistance language — “Text STOP or email XXXX or HELP for assistance”
  6. Include data language — “Message and data rates apply”

Yeah, that’s a mouthful. But then again, so are the pages of legal documents you’ll be forced to review if you don’t comply.

A straightforward, clearly stated text message, complicit with FCC and TCPA regulations, may be more difficult to create, but will likely pay dividends simply by keeping you in front of recipients, and out of hot water with potential spam whistle blowers.

And, not for anything, but you should reassess your members regularly – have them re-up for SMS marketing on a regular schedule to minimize the possibility of complaints, and increase the quality of your lists … and the results that come from them.

So what do you think?

If you haven’t yet, read through these regulations. Then let us know – are these new rules fair or unfair?

How do you plan to change your SMS strategies to account for these new rules, and do you think it will affect your business?

Comment below, and let’s talk about it. As a group, I bet we can come up with a healthy list of solutions and ideas…

About Ryan Deiss

Ryan Deiss is the founder and CEO of Digital Marketer. Over the last 36 months Ryan and his team have: Invested over $15,000,000 on marketing tests Generated tens of millions of unique visitors Sent well over a BILLION emails, and Run approximately 3,000 split and multi-variant tests Ryan is also a highly sought after speaker and consultant whose work has impacted over 200,000 businesses in 68 different countries. Connect with Ryan on Twitter or Google+.
View all posts by Ryan Deiss ➞


  • General Marketing says:

    The fine price is pretty crazy, but I think it’d be fair to give people who send SMS messages to people who don’t ask for them a sort of warning. The fine should be a bit lower and shouldn’t be that high, but I suppose this helps stop people from abusing it.

  • Matt Whitney says:

    It’s a shame for small mobile marketing companies like mine that have played by the rules since day one (8 years ago). There is not a single opt-in that has ever received a message they did not ask for or join a subscription to get and we do not do any premium messaging, voicecall, etc, simple std rate SMS. Every single broadcast message we send has a STOP instructions. Everyone has to opt-in again?, this will be a huge blow to many small businesses thanks to the money hungry few that mess it up for everyone else and the FCC has to get involved.

  • Dexter says:

    This is a bomber for people who have huge list and need to get their recipients to confirm their subscriptions again. It seems that SMS has evolved into email marketing with the double opt-in.

    On the upside, your list will be cleansed and purified, because only serious buyers who want your info will climb through the added hoops to receive pertinent info.

  • Steve Solem says:

    Thanks for the detailed post Brad, but one thing is still clear as mud to me…how does one deal with “You now need express written and signed consent from all opt-ins to receive text correspondences from your company.”?

    Does someone opting in to a list like the 7-11 example you used count as “express written and signed” consent? Unless I’m reading that all wrong, it looks like the new regs kill the possibility of someone texting a keyword to subscribe to a list?

    Have any of the larger sms service providers weighed in on this yet? I’d be curious to know their take on things and plan to question a few that I know now.

    Thanks again,


    • Brad Bortone says:

      Steve, there has been no mention of preventing keyword opt-in. The FCC’s main focal points are making sure all list members — new and existing — have given a clear, conspicuous consent to receive texts.

      In other words, there is no “grandfathering” or pre-existing business relationships allowed to qualify as consent. I would imagine that a keyword opt-in is fine, as long as the other required elements are present in the text.

      As far as the SMS providers opinions, I haven’t heard anything yet, but you know I’ll be paying attention. Thanks for writing!

  • Jan Willis says:

    Thanks Brad for the heads-up and a very informative post. Where the FCC leads the EU follows so it’s only a matter of time before we will see similar regulations over here in the UK. In the meantime marketers would do well to follow the best practices outlined in your post and ensure that they only send SMS messages to people who have explicitly opted-in. Time to get working on those value propositions!

  • Amir Harouni says:

    Thank you very much for this article. It came in handy as I was trying to explain the same to my client. I have shared it so others can benefit from it. Great post.

  • E-Rock says:

    This doesn’t surprise me in the slightest. I’ve gotten a few spam texts and it is pretty lame.

    We’ve been doing all this stuff already and have a unique way to capture mobile leads AFTER they have text-opted-in. We convert them into email subscribers right away and incentivize them to follow us socially.

    I’m actually excited about this as it will clean up the industry and force companies to text message marketing right!

  • W-O-W !!! Holy S— Would never have known about this had it not been for this post. THANK YOU.

    Everyone in business should study (I mean REALLY study) this newest example of government interference with small business!

    Just watch — soon we’ll need a license or have to pay a fee to good ol’ “Uncle Whiskers” just to operate any kind of eCommerce business.

    Any hope for the success of a petition to repeal these restrictive rules?


  • W-O-W !!! Holy S— Would never have known about this had it not been for this post. THANK YOU. Everyone in business should study (I mean REALLY study) this newest example of government interference with small business!

  • Cindy Hopper says:

    Great Article with awesome examples! You distilled the requirements in an very easy to remember fashion! Kudos. Are the new regulations for SMS only or do they apply to Push Notifications also?

    • Brad Bortone says:

      Cindy, as of right now, I haven’t heard of any regulatory language pertaining to push messages. I would imagine this is because push notifications typically require user permission from an app or other platform. If I hear anything, I will certainly update the post.

  • Sandy Abrams says:

    I totally resent getting unasked for messages or calls on my cell phone. For some of us there is a charge for messages. For everyone there is a charge for calls.

    No marketer has the right to make me pay for their marketing efforts.

    I wish the headline were true. If you can’t find prospects and market to people without annoying them and costing them money then you don’t have much of a product or business.

    • Brad Bortone says:

      Sandy – Many people are in complete agreement, hence the desire for these new rules.

      When junk faxes became a problem in the early-mid 1990s, updated regulations lowered the amount of junk sends considerably. For your sake, I hope this increased focus on permission has a similar effect in reducing unwanted texts on your phone.

      My point in the article isn’t to encourage marketers to find “workarounds” or loopholes, but rather to encourage them to stay compliant, offer recipients clear instructions, and still offer marketing value in a limited space. Thanks for your comments!

  • Caleb says:

    Well everything is still a bit new in the mobile world so the compliancy kinks will get sorted out in time. They see what happened in the email marketing industry and want to nip things in the bud for mobile.

    And LOL on the 7 11 comment!

    • Brad Bortone says:

      Caleb – It’s definitely going to be interesting to see how marketers get creative with opt-ins. Though SMS is inherently a limited medium, you know what they say about “necessity.”

      Now, back to my second large (not “venti”) cup of joe. (Thanks for the comment!)

  • Mike Johnson says:

    Excellent article. I received notices about this, but you definitely explained it a lot better than what I had heard previously. The examples are what I really appreciate since this is what has really been making me rack my brain with the perfect message to send.

    That in itself was worth the read here.



    • Brad Bortone says:

      Thanks, Mike. Personally, I don’t usually sign up for a lot of SMS alerts, but admittedly, I’ve been testing a lot of major retailers this week, to see how the “big kids” are handling these regulations.

      If anything worthwhile comes through, I’ll be sure to update the post.

      Thanks again!