SMS marketing tips for small businesses: consent first, then content

The federal rules for telemarketing calls and texts live in the FCC's regulations at 47 CFR 64.1200. For telemarketing calls to wireless numbers made with an automatic dialing system or an artificial or prerecorded voice, the rule requires the prior express written consent of the called party, with narrow exceptions. The same rule's opt-out section expressly covers calls and text messages.

The regulation defines prior express written consent as an agreement in writing, signed by the person, that clearly authorizes the seller to send advertisements or telemarketing messages to a specific phone number. The signature can be electronic or digital, to the extent federal law or state contract law recognizes it as valid.

Whether a particular texting platform counts as an automatic dialing system is a legal question for your lawyer. The practical approach for marketing texts is to collect consent that meets the written-consent standard before you send anything.

The rule spells out the disclosure. The written agreement must clearly and conspicuously tell the person that by signing, they authorize the seller to send them telemarketing messages, and that they are not required to sign the agreement as a condition of buying anything.

For a small business, that usually means a clear checkbox or sign-up form that:

• Names your business as the sender
• Says the person agrees to receive marketing texts at the number they enter
• States that agreeing isn't required to make a purchase
• Is never pre-checked

Keep a record of when and how each person agreed. If anyone ever questions a message, that record is your answer.

The FCC's rule says people may revoke consent using any reasonable method. Replying with the words stop, quit, end, revoke, opt out, cancel or unsubscribe counts automatically. If someone replies with other words, you must treat it as a valid opt-out when a reasonable person would understand it that way. A reply asking you not to text anymore counts.

The deadline is specific. Opt-out requests must be honored within a reasonable time, not to exceed ten business days from receipt. You may send one confirmation text, as long as it only confirms the opt-out, contains no marketing and is the only message you send after the request. The rule presumes a confirmation sent within five minutes falls within the person's prior consent.

The rule prohibits telephone solicitations to residential subscribers before 8 a.m. or after 9 p.m., local time at the recipient's location, and it applies those rules to telemarketing texts sent to wireless numbers to the extent the FCC has described. Your customers may live in several time zones, so schedule by their local time, not yours.

A simple house rule makes compliance easier: send marketing texts only during normal business hours in the recipient's time zone.

The regulation also requires businesses that make telemarketing calls to keep an internal do-not-call list, with a written policy available on demand and staff trained on how to use it. Treat opt-outs from texts the same way: one list, checked before every send, shared with anyone who sends messages for you.

The national Do Not Call registry matters too. The rule bars telephone solicitations to residential numbers on the national registry. For those numbers, the rule says a person's prior express invitation or permission must be evidenced by a signed, written agreement that states the consumer agrees to be contacted by this seller and includes their number. Properly collected written consent is the foundation of everything else.

Consent gets you permission. Content keeps it. A few habits help:

• Say who you are in every message.
• Keep it short and give one clear reason the text is worth reading.
• Put the details up front. The FTC's guidance for online advertising stresses that it's important to disclose the details of the deal up front.
• Send less than you think you should. Every message should earn its place.

Remember that recipients have their own tools. The FTC tells consumers they can forward an unwanted text to 7726 (SPAM), which helps wireless providers spot and block similar messages, and that they can report spam in their messaging apps. Irrelevant texts don't just annoy people. They can make it harder for all your messages to get through.

1. Collect written consent with the required disclosures, and keep records.
2. Never pre-check the consent box.
3. Process stop, quit, end, revoke, opt out, cancel and unsubscribe automatically.
4. Honor every opt-out within ten business days, and faster if you can.
5. Send only during business hours in the recipient's time zone.
6. Keep one internal do-not-text list.
7. Have a lawyer review the program before launch.

SMS marketing works best when people are glad they signed up. Respect their consent, and the channel stays open.