We very often hear businesses ask us the question of whether they can legally text message their customers? This question from businesses usually gets asked when the business is new to SMS marketing, and has already collected their customer’s mobile phone numbers. Before we help you determine whether you can legally text message your customers, it’s a good idea to get a little background on the law that determines whether you can text message your customer legally or not.
So what is the law governing whether you can text message your customers? It’s actually a federal law, called the Telephone Consumer Protection Act (TCPA), which is governed by the Federal Communications Commission (FCC). While you may hear things like the CTIA, or Mobile Marketing Association when researching best practices for SMS marketing, the TCPA is the only actual law when it comes to whether your business can text message customers.
So what does the TCPA say about whether or not you can text messaging mobile phone numbers that you’ve already collected from your customers? It’s actually pretty simple, if when you collected your customer’s mobile phone numbers, you disclosed the following two things to them in a “clear and conspicuous” manner, you can text message those customers. What does “clear and conspicuous” mean? It means that the disclosures were displayed in close proximity to wherever you were asking customers for their mobile phone numbers. If you did not disclose the following two thing to customers when they gave you their mobile phone numbers, or you didn’t disclose these things in a “clear and conspicuous” manner, you cannot text message them.
- By participating, you consent to receive text messages sent by an automatic telephone dialing system.
- Consent to these terms is not a condition of purchase.
As you can imagine, most businesses when they’ve collected their customer’s mobile phone numbers in the past have either not disclosed the above two things to their customers, or haven’t done so in a “clear and conspicuous” manner. This usually leads to businesses asking if they can text message their customers to get their permission. The answer is very clear, NO! Remember, if you’ve not disclosed the above two things when you were collecting your customer’s mobile phone numbers, or didn’t disclose those two things in a “clear and conspicuous” manner, you can not text message them… period… end of story. Don’t believe us? Jiffy Lube sent text messages to their customers to get their permission, and it ended up costing them $47M in the largest text message spam lawsuits to date.
So what can happen if your business text messages customers, even though you didn’t disclosed the above two things when you’ve collected your customer’s mobile phone numbers, or haven’t done so in a “clear and conspicuous” manner? One of three things can happen…
1) Your customers may be granted a private right of action in a local court. In non-legal speak, this means that each text message recipient can sue your business for each and every message they’ve received. OK, but how much could someone really get for receiving a text message? It’s actually a considerable amount: an angry text message recipient can claim damages of up to $500 for each text message they receive.
But it gets worse. If the court finds that your business willfully or knowingly violated the TCPA, the court can triple the amount of damages, which means your business could be sued for up to $1,500 per text message!
2) A state may initiate civil action against your business on behalf of its citizens.
3) Complaints may be filed with the Federal Communications Commission, which has the power to assess penalties against your business for violating the TCPA.
Want more information on collecting your customers phone numbers? Check out the following free SMS marketing guides below.
