Clients who wish to send marketing and/or informational text messages to their customers must comply with federal laws and regulations, including the TCPA, and obtain consent from their customers. It is your responsibility to ensure that you comply with the necessary requirements to avoid any liability. Below is a summary of the TCPA, your obligations under the TCPA, and some sample language you can use to help ensure your compliance:
What is the Telephone Consumer Protection Act (“TCPA”)?
The TCPA was passed into law in 1991 to prevent consumers from receiving unwanted telemarketing telephone calls and has since been expanded to cover SMS text messages. The Federal Communications Commission (“FCC”) is empowered to issue rules and regulations implementing the TCPA and has announced new rules as recently as July, 2015. Among other things, the TCPA allows individuals to file lawsuits and collect damages for receiving marketing text messages without express written consent.
What is a marketing text message?
Marketing text messages include those text messages sent through automated software that advertises the commercial availability of any products or services to consumers. Customers must provide prior express written consent before receiving these text messages. Messages that are purely informational in nature still require verbal or written consent from the customer.
What is “consent” as required by the TCPA?
Before you send a text message to a customer, you must obtain unambiguous, express consent from the client (written or verbal depending on the type of message as explained above). There is no “established business relationship” exemption! Established business relationships with your clients no longer relieves you of obtaining prior express consent to send text messages. For written consent, compliance with the E-SIGN Act satisfies this requirement, meaning that electronic or digital forms of signature are acceptable (i.e., agreements obtained via email, website form, or text message). Consumer consent must be unambiguous, meaning that the consumer must receive a “clear and conspicuous disclosure” that he/she will receive future marketing text messages on behalf of a specific advertiser; that his/her consent is not a condition of purchase; and he/she must designate a phone number at which to be reached.
What are the penalties for failing to comply with the TCPA?
The TCPA provides for damages ranging from $500.00 to $1,500.00 per unsolicited message, depending on whether the advertiser “willfully” or “knowingly” violated the TCPA. Considering that telemarketing campaigns often involve thousands of text messages, potential damages may escalate very quickly!
Sample Consent Language
In order to help you comply with the TCPA requirements above, here is some sample consent language you might consider having your customers agree to in writing:
I hereby consent to receive text message advertisements from or on behalf of [ADVERTISER] at the telephone number provided herein. I understand that consent is not a condition of purchase or receiving a service and that I may revoke consent to receive text message advertisements at any time. I understand and agree that any text message I receive may be sent by an autodialer.
(The information above is current as of 10/22/2015)