Text Message Advertising Laws


Do you advertise using text messages? If your marketing campaign involves text messages you should be aware of the recent rule changes adopted by the FCC to its Telemarketing Rules.

In February 2011, the Federal Communications Commission (FCC) announced a significant telemarketing rule change affecting text message advertising. The new FCC “robocall” and text message advertising laws make it illegal for telemarketers to place calls or send automated texts without express written consent from the consumer. Additionally, consumers must always be given an opportunity to opt-out, even after he or she has opted-in.

First, automated text messages are now treated the same as automatically dialed and prerecorded telephone messages. The FCC has stated that “any type of phone call or text to a wireless device needs written consent.”


Written Consent Requirement for Prerecorded Telemarketing and Autodialed Calls to Cell Phones

Consent can be provided on paper or through electronic means, including website forms, a telephone keypress, or by an oral recording. (The FCC does not currently require written consent for autodialed or recorded telemarketing calls to cell phones or recorded telemarketing calls to residential phones). Prior written express consent is defined as a written agreement, containing the telephone number and signature of the person called, that includes a “clear and conspicuous disclosure” that by signing the agreement the person authorizes telemarketing calls from the seller using an autodialer or a prerecorded message. The agreement must also include notice that the person is not required to sign the agreement “as a condition of purchasing any property, goods, or services.”

The signature may be an electronic signature, which means it can be obtained by e-mail, a website form, text message, telephone keypress, or a voice recording.


Automated Opt-Out Requirement for Prerecorded Telemarketing Calls

The FCC’s new rules require that prerecorded telemarketing messages that could be answered by a live person must include an automated mechanism, announced at the outset of the call and available throughout the duration of the call, that will allow the called party to opt out of receiving future telemarketing calls from the seller. Current FCC rules do not require an automated opt-out mechanism in prerecorded telemarketing calls. The mechanism must automatically add the consumer’s number to the caller’s company-specific do-not-call list and must immediately disconnect the call. For prerecorded telemarketing calls that are answered by voice mail or an answering machine, the message must include a toll-free number that the consumer can call to be connected directly to an automated opt-out system.


No more “preexisting business” provision

Another major change is the elimination of the “preexisting business” provision. Under the new laws, you cannot claim “implied consent” simply because a consumer had previously done business with a given entity, such as a relationship when the consumer contacts a business to ask questions or purchases something from a business.


Automated Opt-Out Requirement for Abandoned Call Recorded Message

The FCC’s new rules will also require that the recorded message include an automated opt-out mechanism. Current FCC rules do not require an automated opt-out mechanism in the prerecorded message that is required to be played for any “abandoned call”. Any telemarketing call placed using an autodialer that is answered by a person and not connected to a live operator within two seconds is considered “abandoned” under FCC rules. Current rules on abandoned calls require a recorded message be immediately played stating the name of the business on whose behalf the call was placed, that the call was for telemarketing purposes, and a telephone number at which the called party may assert a do-not-call request.


Important Deadlines

The FCC has announced October 16th, 2013, as the effective date for its new rules requiring businesses to obtain prior express written consent from consumers before calling them with prerecorded telemarketing robocalls or before using an autodialer to call their wireless numbers with telemarketing messages or text messages. The FCC also announced January 14th, 2013, as the effective date for its new rule requiring that prerecorded telemarketing messages must include an automated op-out mechanism. November 15th, 2012, is the effective date for the new rule matching FCC rules on measurement of the abandoned call rate with changes adopted by the Federal Trade Commission (FTC) in 2008 and requiring the recorded message played for an abandoned call to include an automated opt-out mechanism.


Internet Marketing Concerns

The new rules could cause marketers and businesses to potentially alter some “offer paths.” A conservative approach to compliance would entail including an opt-in notice at the top of the transaction. Another approach is to simply include a checkbox of acceptance right before some required information field in the offer form. But, the laws are still new and have not been interpreted by an adjudicatory body.