When the Telephone Consumer Protection Act was enacted in 1991, it was meant to protect consumers from what was essentially phone spam—unsolicited calls and faxes. It has since evolved to protect today’s consumers from unwanted text messages, particularly those originated by sequential number dialers and random phone number generators.

As the fines for violating the regulation can be substantial many businesses opted to mitigate their risk of running afoul of the regulations by simply not sending text messages at all.

But, the TCPA doesn’t prohibit sending text messages—it just limits how it can be done. And a recent Supreme Court decision (Facebook, Inc. v. Duguid, et al.) narrowed and clarified the definition of an automatic telephone dialing system—a move designed to cut down on the surge of individual and class action lawsuits alleging TCPA violations. This opens the door to more businesses embracing responsible text messaging as part of a multi-channel marketing strategy.

Although restrictive, the good news is, that rather than diminishing the returns of text messaging, the TCPA helped preserve the value of the channel. It ensured marketers have a roadmap to follow to achieve compliance and safeguarded the channel from becoming another spam avalanche like the less-regulated channel that email became. The Supreme Court ruling now makes it possible for ethical marketers to use texting with dramatically reduced fear of litigation.

A text messaging program fills big gaps in today’s marketing rosters, serving as an efficient mechanism to deliver relevant and timely offers to individuals, as well as achieving effective redemptions with attribution. This is especially valuable for location-based retailers, such as quick-service restaurants as they inform and attract diners.

Think back to the early days of the pandemic—when every restaurant had to close their dining rooms and in-store ordering. The benefit of being able to directly connect with customers to share near-real time store changes and offers was invaluable, and consumers still want that one-to-one relationship with their favorite brands. Plus, the open rate for text messages is 98 percent—far ahead of the open rate of an in-app or email message.

The pandemic is still causing rapidly changing conditions across the country, and customer text messaging remains a vital communication method for quick-serves, helping them alert guests in near real time to changes to hours of operation, delivery, curbside options and more.

Including diligent and thoughtful text programs as part of omnichannel marketing programs is a must in today’s landscape while ensuring there are layers of protection to keep the effort in compliance with the TCPA.

Marketers who follow the guidelines can still enjoy the benefits of text messaging—a channel that’s one-to-one results have proven to be superior to other marketing channels thanks in part to the TCPA guidelines. Because the TCPA requires a consumer’s consent to market to them, marketers gain greater confidence that their programs are reaching the intended target audience. And, consumers who opt into these programs have a direct line of communication with their favorite brands and gain access to incentives they may have missed in their inbox or apps.

Best Practices for Text Marketers

There are a few best practices that marketers can use to make sure they not only comply with the TCPA but also create a positive digital guest experience:

  • Enable consent: Making sure that the customer has given consent is a crucial element of a successful text campaign. This means that the consumer must be aware and agree to receiving automated text messages.
  • Take opt-outs seriously: Make sure that the text messaging program is properly set up to ensure consumers who opt-out will no longer receive messages. A double opt-in process is recommended to ensure the consumer understands what to expect and confirms their opt-in. This also safeguards customers from accidentally joining a campaign they didn’t mean to interact with, and protects the marketer from mistaken or fraudulent opt-ins.
  • Maintain records: Records of all marketer-to-consumer interactions over text message must be stored and maintained to enable secure protection of both the consumer’s and marketer’s rights. Develop a process for handling of carrier’s recycled phone numbers to protect from unintentionally messaging someone who has received a new phone number that was opted into your campaign by the number’s previous owner. This often requires proprietary algorithms for determining whether a number change represents a change in carriers or a new customer using a recycled phone number.
  • Respect off hours: When it comes to sending food offers time zone location matters and often it is best to use a customer’s address rather than the more portable area code. No one wants a 4 am text message for a lunch offer. Also be respectful about nighttime texts.
  • Keep a close eye on compliance: Above all be diligent in the implementation and monitoring of these practices. Stay abreast of new regulations that may require changes in your overall marketing initiatives.


Text messaging is consumers’ most used app on their phone. Meet guests where they are and give them the option to connect in their preferred channel. As long as you ensure you are following TCPA compliance to mitigate risk, you too are helping preserve the efficacy of this highly engaging, real time marketing channel.

With more than two decades of experience redefining the way technology and business interact, Mobivity CEO Dennis Becker leads the company’s vision of bringing businesses more customers, more often through disruptive technologies. An inventor of several patents, Becker’s background also includes awards as founder of Frontieric Corporation and CEO of Bexel Technologies. Prior to Mobivity, Dennis studied Computer Science at the University of Oregon and served in the USAF.

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