Note: This information is not legal advice. While we do our best to provide useful information and context as a starting point, Endear advises all brands to obtain professional legal advice to ensure that messaging is sent in compliance with applicable laws.
Sending SMS text messages in the US
SMS texting in the US is governed by the TCPA (Telephone Consumer Protection Act). It is a federal law that covers the use of automated telephone communications - including phone calls, voicemails, fax machines, and text messages.
The TCPA requires that express written consent is obtained before sending text messages to a consumer when using automatic telephone dialing systems (ATDS).
What is an ATDS?
An ATDS is “equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, and to dial such numbers.” When determining whether a system is an ATDS, the FCC and courts often focus on whether it has “the capacity to dial numbers without human intervention.” For example, if a human must click to send a text message, then the system may not be an ATDS because human intervention is required to send each text message.
Recent court rulings & clarifications by the FCC have made it clear that a peer-to-peer texting platform, where each message is initiated by a person, is not an ATDS.
Is Endear an ATDS?
Endear requires human intervention to send SMS text messages of any kind. In some cases, Endear allows sending SMS text messages in bulk to groups of recipients. Generally, the capability to send bulk SMS text messages does not categorize a software as an ATDS, but is best to get express written consent when bulk SMS texting consumers to avoid potential legal issues.
When is express written consent not required?
In general, it is best to always get express written consent before contacting a consumer; however, there are certain cases where it may not be required:
When sending manual, human initiated 1-1 (peer-to-peer) SMS text messages to consumers one-at-a-time, express written consent may not be required.
When sending automated, "transactional" SMS text messages even in bulk, express written consent may not be required. A transactional message's primary purpose should be to update a consumer about a prior business relationship.
When should I get express written when sending SMS text messages through Endear?
Note: This information is not legal advice.
Our recommendation is the following:
When sending bulk marketing messaging to consumers through Endear, obtain express written consent.
When sending bulk transactional messaging to consumers through Endear such as thank you notes, confirmations, or follow-ups to prior purchases or other customer activity associated to your business, you should not need express written consent as long as the primary content or messaging could not be considered marketing.
When sending manual, human initiated 1-1 (peer-to-peer) messaging through Endear, you should not need express written consent.
Further reading
If you are curious to dive further in to TCPA and ATDS regulation, here are some articles you may consult: