The Telephone Consumer Protection Act (TCPA) is the primary federal law governing SMS marketing in the United States, and it is the most litigated communications statute in history. Violations are costly: the TCPA creates a private right of action allowing any individual recipient to sue for $500 per violation for negligent violations and up to $1,500 per violation for willful or knowing violations, with no cap on the number of class members who can join a single action. A business that sends 10,000 unconsented marketing texts faces exposure of up to $15 million from a single class action lawsuit.
The Consent Standard for Marketing SMS
For marketing or promotional SMS messages, the TCPA requires prior express written consent. Written consent under the TCPA does not necessarily mean a physical signature; it includes electronic consent obtained through a web form, a checkbox on a digital application, an email confirmation, or a keyword opt-in via text message. The critical requirement is that the consent must be clear and conspicuous, must disclose that the subscriber is agreeing to receive recurring automated marketing text messages, must state the name of the business sending the messages, and must state that consent is not a condition of purchasing any goods or services. Burying the consent disclosure in general terms and conditions without explicitly calling it out is not sufficient and creates TCPA liability even if a box was technically checked.
Transactional vs Marketing Consent Requirements
Transactional or informational messages, such as order confirmations, shipping notifications, appointment reminders, and two-factor authentication codes, are subject to a lower consent standard than marketing messages. For strictly transactional messages, implied consent from an existing business relationship is generally sufficient under the TCPA, provided the message content is genuinely informational and does not include any promotional content. The moment you add a promotional element to a transactional message, such as mentioning a sale, including a coupon code, or recommending a related product, the consent requirement for that message escalates to prior express written consent. This is why mixing promotional and transactional content in a single message is a significant compliance risk that most TCPA attorneys advise strongly against.
Record-Keeping Requirements
Under the TCPA, the burden of proving consent falls on the sender, not the recipient. If a subscriber disputes that they consented to receive your messages, you must be able to produce evidence of their consent including the date and time of opt-in, the mechanism through which consent was provided, the exact disclosure language they agreed to, and the phone number at which they agreed to receive messages. Consent records should be retained for a minimum of four years, which aligns with the TCPA statute of limitations for federal claims, though some states have longer statutes of limitations that may require longer retention. Your Twilio implementation should log consent events in a database table that stores all of these data points at the time of opt-in, not reconstructed after the fact.
The Do-Not-Call Registry and Wireless Numbers
The Federal Trade Commission's National Do Not Call Registry applies to telephone solicitations, and the FCC has interpreted SMS marketing messages as telephone solicitations subject to its requirements. Businesses sending marketing SMS must check recipient numbers against the National Do Not Call Registry and must maintain an internal do-not-contact list of anyone who has opted out of your specific messages. The TCPA also specifically restricts automated calls and texts to wireless numbers without prior express consent, which historically distinguished mobile phones from landlines but is now broadly interpreted to cover virtually all personal mobile numbers. Scrubbing your list against the National DNC Registry before every campaign send, combined with honoring your internal opt-out list, reduces your TCPA exposure significantly.
Conclusion
TCPA compliance for SMS is not a checkbox exercise; it requires documented consent, clean list management, and a defensible paper trail for every subscriber. Speak with our compliance team and we will audit your Twilio setup for regulatory gaps at no charge.
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