SMS & MMS Marketing Regulations

In the United States, the Telephone Consumer Protection Act (“TCPA”) and its accompanying regulations control how companies can use SMS and MMS text messaging services to reach out to their consumers. It is your responsibility to ensure that, in using the Postscript Platform to send messages to consumers, you understand and are complying with all relevant TCPA regulations. Therefore, you should make yourself familiar with all applicable TCPA laws and the relevant industry guidelines that build on these laws, including the CTIA guidelines for text message marketing.

The TCPA’s regulation of text message marketing campaigns can be boiled down to the following statement: Consumers have the right not to receive unsolicited marketing communications via SMS, and companies should not send consumers automated SMS marketing text messages unless they have obtained a consumer’s prior express written consent.  

Under the TCPA, you may only send a consumer automated marketing messages after that consumer has provided you with “prior express written consent.” This consent may be gathered electronically, including through the use of text messaging keywords. However, at a minimum, the consent you receive must contain explicit language for each and every element identified below, indicating that the consumer acknowledges and agrees:

    • To receive recurring marketing messages on the consumer’s mobile phone number
    • That your messages may involve the use of an automatic telephone dialing system (“ATDS”)
    • That consent is not a condition of purchase

This consent should be retained so that it can be produced in the event of litigation because federal law provides that it is the burden of the person sending the messages to prove that the consumer provided express written consent to text him or her.

Furthermore, you should also ensure you are following the practices contained in the latest version of CTIA’s Short Code Monitoring Handbook and CTIA’s Messaging Principles and Best Practices Guide, as the practices contained therein are designed to protect consumers and ensure your messages are being sent in a manner approved by the nation’s wireless carriers.