Business-to-Business SMS Marketing: Navigating CAN-SPAM and TCPA Regulations

By Rachel M. Wolf, Esq.

In today’s digital age, businesses rely on various communication channels to reach their target audience. Among them, bulk business-to-business (B2B) SMS messaging has emerged as a powerful tool for marketing and customer engagement. However, navigating the legal landscape surrounding SMS marketing can be daunting. This article delves into the regulatory framework governing B2B SMS messaging, focusing on the CAN-SPAM Act and the Telephone Consumer Protection Act (TCPA). Unraveling the complexities of the TCPA is crucial for businesses set on leveraging the power of SMS marketing.

The CAN-SPAM Act Doesn’t Apply to SMS Messages

The CAN-SPAM Act, designed to regulate commercial electronic mail messages, primarily covers email marketing, not SMS messaging. According to the Act, a commercial electronic mail message is one that primarily serves the purpose of advertising or promoting a commercial product or service. It involves electronic mail sent to unique email addresses, with specific requirements for opt-out mechanisms and accurate sender information. However, the CAN-SPAM Act does not apply directly to bulk SMS messaging sent to mobile phones. Instead, businesses must adhere to the rules established by the TCPA when engaging in SMS marketing to wireless phone subscribers.

The TCPA and its Implications for B2B SMS Messaging

The Telephone Consumer Protection Act (TCPA) regulates telemarketing calls and text messages, including SMS, to wireless phone subscribers. While the TCPA mainly focuses on protecting consumers, its application to B2B SMS messaging is not entirely straightforward.

Do-Not-Call Rules:

Under the TCPA, telemarketing calls or texts to numbers on the National Do-Not-Call Registry are generally prohibited. This applies to residential telephone subscribers who have registered their phone numbers to avoid unsolicited calls. Although the National Do-Not-Call Registry primarily targets residential numbers, wireless phone subscribers can also add their mobile numbers to the list, including those used for business purposes.

Autodialing/Robotexting:

The TCPA restricts autodialing (using an automatic telephone dialing system) or robotexting (sending text messages using automated systems) to wireless phone numbers without prior express consent unless it is an emergency. This restriction applies to both personal and business cellular phones. It is important to note that while the TCPA may apply to B2B SMS messaging, the determination depends on various factors, including the technology used for sending the texts and whether prior express consent has been obtained.

Obtaining Prior Express Consent:

Businesses may avoid TCPA liability by obtaining prior express consent from the recipients before sending marketing texts. The FCC has clarified that for marketing purposes, prior express written consent requires a written agreement that specifically authorizes telemarketing via automated means. This agreement may be in the form of an e-signature or button press, but it must include certain disclosures and not be a condition of purchase. For non-marketing or non-advertising texts, express consent can be demonstrated through prior express oral or written consent, or by providing the wireless number to the sender without specifying no communication preference.

Conclusion

While the CAN-SPAM Act is not applicable to SMS messaging, businesses must be mindful of the TCPA’s regulations when engaging in SMS marketing to wireless phone subscribers. Understanding how the rules surrounding Do-Not-Call requirements may apply to your specific B2B SMS campaign is crucial to ensure compliance with the TCPA. In addition, several states currently have laws governing solicitation by text message.  As B2B SMS marketing continues to evolve, businesses should stay informed about any state-specific laws that may impact their SMS communication practices. By understanding these regulations, your business can harness the full potential of SMS marketing while staying compliant.

The information contained herein is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information contained in this blog should be construed as legal advice from Shumaker Williams P.C. or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. This auricle is current as of January 2023.