TCPA Compliance for SMS Messages and Texting

TCPA Compliance

Text Messaging requires compliance with the Telephone Consumer Protection Act (TCPA), a US Federal law, and best practices from the CTIA, a carrier trade association, to send text messages via US and Canada SMS enabled phone numbers.

Texting quickly becoming the go to way to communicate with employees, job seekers and customers because 95% of text messages are opened and 37% of text messages are returned in 12 minutes.

This means text messaging speeds up the communication process.

Text Recruiting and HR Texting with employees and job seekers is rapidly becoming the fastest way to communicate with candidates and employees.

Talent Acquisition professional and leaders need to understand that SMS messaging requires opt-in, opt-out, and adherence to specific guidelines.

All sms communications must be compliant with the Telephone Consumer Protection Act (TCPA). The TCPA regulates telemarketing calls, auto-dialed calls, prerecorded calls, text messages, and unsolicited faxes. Just like “Do Not Call” lists, candidates must have opted-in and opt-out, rights, which GoHire helps to provide and manage.

How Does the TCPA affect Recruiting with SMS?

All text messaging requires TCPA compliance. If you’re considering, or currently using text messaging for recruiting, here are a couple of things you need to know.

First off, like any legal info, this information is broad based, and not considered legal advice. Please contact a TCPA attorney, or read Text Recruiting Compliance – Federal Law and the TCPA from Kellie Mitchell Bubeck, Copilevitz & Canter. They know the TCPA.

Second, a lot of recruiters think that “employment” and “recruiting” messages sent via sms / text messaging are not considered “telemarketing” or “advertising” under TCPA, and are therefore exempt, see case law below.

While the Kale Realty case below discusses this, it’s only part of the TCPA. Job seeker must still provided consent and still have the right to opt-out.

GoHire takes a conservative approach to TCPA requirements; requiring Opt-ins, Double-optins, and the ability to remove, or stop communications, via a company-wide TCPA Compliance solution.

Is Recruiting an “Advertisment” under the TCPA guidelines?

The Telephone Consumer Protection Act (TCPA) prohibits autodialed or prerecorded “advertisement” or “telemarketing” calls or texts unless made with the prior express written consent of the recipient.  But are genuine offers of employment subject to this restriction?

“Advertisement” means “any material advertising the commercial availability or quality of any property, goods, or services.”  The content of the call or text determines if it is an “advertisement,” and the distinction can be small.

Some Recent “Text Recruiting” TCPA rulings:

There’s a very active TCPA plaintiff’s bar, filing class action cases regularly. Each TCPA violation has a penalty of either $500, or $1,500, per text message sent. So, if you send 1,000 text messaging to candidates, that either never gave you consent, or requested to “opt-out”, that could cost you $1.5 million, plus attorney’s fees. As a result, GoHire text recruiting campaigns not only require “opt-ins”, but manages your companies TCPA “Do Not Message” database.

TCPA compliance and Recruitment Messages are not “Advertising” or “Telemarketing” under the TCPA – Kale Realty

In a 2016 case involving Kale Realty, Payton v. Kale Realty, LLC, Case No. 13 C 8002 (N.D. Ill.), the court ruled that “recruiting” is not specifically covered as advertising under the TCPA.

In the case, Kale Realty, a real estate brokerage firm, sent the following sms message to a former associate:

“Kale Realty named 2013 Top 100 Places to Work by Tribune — We pay 100% on sales — reply or visit to learn more! Rply 69 to unsubscribe.”

The court ruled the message was not telemarketing or advertising, with the intent to sell a good or service, as defined by the law. See 47 C.F.R. § 64.1200(f)(1) (defining “advertisement” as “any material advertising the commercial availability or quality of any property, goods, or services”) and § 64.1200(f)(12) (defining “telemarketing” as “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services”).

The court also ruled that because the plaintiff included their mobile phone number in numerous emails, that express consent was provided.


Uber was accused of violating the Telephone Consumer Protection Act by text-messaging advertisements without “prior express written consent.”

Sample text messages read “You’re invited to drive Uber. No schedule. No boss. Sign up now and get a $500 bonus.”

Uber claimed that they are not sending ads, but offers of employment, which don’t require written consent. In this case, dismissed in July 2015, U.S. District Court Judge Jon Tigar ruled that “Uber is primarily a transportation business that provides ride services, not a technology business,” and that their text messages were “an attempt to recruit drivers so that those potential drivers could provide services to riders.”

What about those who complete an Uber driver application and gave their cell phone number? Could they state a claim? Judge Tigar said that this was enough to demonstrate consent, even under the FCC’s previous announcements.

“The FCC’s most recent order, released on July 10, 2015, elucidated that there is not a specific method by which a caller must obtain prior express consent, only that the consent must be express and not implied or presumed. See 2015 FCC Order, ¶¶ 49, 52. Express consent can be demonstrated when the called party gives her wireless number to the person initiating the phone call “without instructions to the contrary.” Id., ¶ 52. For the foregoing reasons, the Court agrees with Uber that any plaintiff who provided her phone number as part of the Uber application process consented to receive Uber’s texts about becoming an Uber driver.”

What about Auto-Responses and SMS Chat bots:

FCC Rules that On-Demand Text Messages Do Not Violate the TCPA

On July 10, 2015, the FCC made a declaratory ruling, stating that no longer is TCPA consent disclosures (prior express written consent and that consent is not a condition of purchase) required as long as an SMS autoresponder meets the following criteria:

  • The text message is requested by the consumer.
  • The text message is a one-time only message sent immediately in response to a specific consumer request.
  • The text message contains only the information requested by the consumer with no other marketing or advertising information.

This definition removes any doubt about the ability to auto-respond to consumer initiated messages. But, what about sms recruiting chatbots?

Texting Compliance Frequently Asked Questions:

Does TCPA Apply to Text Messages?

The TCPA does apply to text messages in the United States and across all types of sms / texting channels like short codes, ten digit long codes (local ten digit phone numbers… 10DLC), and Toll-Free Numbers.

What are the TCPA Requirements for Text Messages?

The basic TCPA requirements:

  1. Explicit or Implied Opt-in, depending on the type of message and audience.
  2. Opt-out automation, via message responses like “Stop”

How Does GoHire maintain client TCPA Compliance?

GoHire provides Optin, Opt-out compliance across all inbound and outbound texting numbers, in alignment with our text messaging carrier partners. We protect clients by requiring “Double Opt-ins” on every first text messaging campaign. When candidates use Text to Apply, GoHire responds with a double-optin messaging. This way, no matter where the candidate originated, each candidate is provided the opportunity to Opt-in, or not.

For more information about  Text Recruiting Solutions, please contact a GoHire representative.