Text Message Marketing Could Cost Your Business Millions - Here's How to Protect Yourself

How to Legally Protect Your Business When Using SMS Marketing: What High-Revenue Online Businesses Need to Know

If you’re using SMS (text messaging) as part of your marketing strategy, you’re tapping into one of the fastest-growing tools in the digital marketing space.

For online businesses, SMS marketing offers a direct line to customers who can be hard to reach through other channels, often resulting in higher engagement rates than traditional email or social media marketing.

However, this high engagement comes with significant legal responsibilities, especially under the Telephone Consumer Protection Act (TCPA) - one of the most litigated laws in the United States. Failure to comply can put your business at risk of lawsuits with hefty fines.

Why SMS Marketing Poses Unique Risks

The TCPA protects consumers from unsolicited text messages and calls. Violations occur most frequently when businesses send reminders, promotions, or customer service messages without proper consent.

Texts are typically used to:

  • Send webinar or event reminders
  • Communicate with customers about products or services
  • Promote sales, discounts, or other marketing messages

Failing to follow these laws can be costly. Lawsuits can pile up quickly, and class actions for TCPA violations are common, often alleging millions of infractions. For established businesses, these fines add up fast, so proactive legal measures are essential.

Violations can cost anywhere from $500 to $1,500 per text message, and damages awarded under TCPA claims have surpassed those of most other federal statutes. Even if your business isn’t actively violating the TCPA, compliance gaps can leave you vulnerable to opportunistic lawsuits.

There are entire law firms that focus on identifying and pursuing TCPA violations, which means it’s essential to review your SMS marketing practices to protect your business.

Now, there are multiple aspects to keeping it legal and this list is not exhaustive, but to start, here are 4 critical areas you’ll want to review:

Key Compliance Areas for TCPA-Proofing Your SMS Marketing Strategy

1. Your Opt-In Process
One of the first steps toward compliance is securing express written consent from each person you plan to text. Unlike typical marketing permissions, TCPA compliance demands specific “magic language” on your opt-in form. A simple checkbox isn’t sufficient - consumers must understand that they’re consenting to receive marketing texts and any associated terms.

2. Record-Keeping for Opt-Outs
To remain compliant, you need an internal “do not call” list where you record individuals who’ve opted out of receiving texts. Best practices include maintaining this list for at least four years and regularly cross-referencing it with the national “do not call” registry to ensure accuracy.

3. Internal Compliance Processes and Team Training
Every team member who has access to your text messaging system must be trained in TCPA compliance. Not only is this crucial for managing opt-ins and opt-outs, but it’s also essential for demonstrating compliance if challenged legally. Documented internal processes and proof of team training are your best defenses in case of a lawsuit. Without proper documentation, proving compliance becomes significantly harder.

4. Text Message Parameters and Caller ID Requirements
The TCPA mandates that text messages can only be sent during specific, approved hours, and all messages must include an accurate caller ID from a verifiable phone number. Violating these timing or caller ID rules can quickly lead to TCPA liability, especially for businesses operating across multiple time zones.

    What to Do if You’re Using (or Considering) SMS Marketing

    If you’re already using SMS as part of your strategy or considering it, a legal consultation can help identify any potential compliance gaps. With the Legal To Scale™ package, we offer a thorough review of your SMS marketing and compliance practices, aligning your operations with federal requirements.

    Here’s how it works:

    Business Assessment and Compliance Audit: You’ll receive a full review from two experienced attorneys who specialize in digital marketing law. Together, we’ll map out any existing compliance gaps and outline preventive measures for future initiatives.

    Customized Legal Roadmap: Based on our findings, we provide a detailed Legal Roadmap report, customized to your specific business needs. This guide ensures you’re informed on how to stay compliant with the TCPA and avoid penalties.

    Actionable Legal Support: Following the review, we'll recommend your highest-priority legal project for our team of experts to handle through our On-Demand Services, helping you implement solutions swiftly and confidently.
      If your business is nearing 7-figures in annual revenue and you’re ready for personalized 1:1 support as you expand your marketing and advertising efforts, apply here to work with us. Get the expert legal counsel you need to make sure you’re complying with regulations and protected from TCPA lawsuits before they even happen.

       

          

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