Disclaimer: This blog is for general information purposes only and does not constitute legal advice and does not create or intend to create an attorney-client relationship. This blog post should never be used to replace the advice of your personal attorney.
One of the purposes of Telephone Consumer Protection Act (“TCPA”) is to allow consumers to avoid unwanted marketing and advertising text messages. To send a marketing or advertising text message to a consumer, a company needs consent.
What is the Purpose of TCPA Text Message Consent?
Text message consent regulates the sending of marketing messages. This wasn’t always the case as the TCPA had only covered marketing calls before. However, as SMS software became more prevalent, it needed to adapt. The need for consent for sending marketing SMS messages is one example of this.
Companies now need prior express consent from consumers. Without it, businesses aren’t allowed to send marketing text messages.
How Can a Business Get TCPA Text Message Consent?
A major part of TCPA compliance is the need for a customer’s consent. It’s not as simple as asking a consumer if you can send them a message. The Federal Communications Commission outlines specific requirements for text message marketing consent. Consent is not general, but limited, and relates only to the current SMS marketing campaign. The consent must be in written form. The E-SIGN Act defines written consent. Under that Act, prior written consent can come in various digital forms. This includes opt-in permission obtained through a website form, email, or text message. Companies can also gather consent from voice recording or with a dial pad. However, there are other rules regarding consumer consent:
- Companies must keep records of text messages that relate to marketing.
- The consumer must be able to unsubscribe from marketing messages.
- Companies should only send text messages during business hours. Business hours are between 8 AM to 9 PM in the customer’s local time zone.
Exemptions From the TCPA Text Message Consent Requirement
Businesses don’t always need consent for sending text messages. If the message contains only information, such as delivery and service updates, and no sales message, companies can send the message without consent. However, if an informational message contains a hint of an SMS marketing campaign, the company sending it will be in breach of the TCPA unless there is consent. Thus, it’s necessary to obtain consent even if you’re sending text messages with primarily information.
Other TCPA Consent Exemptions
Prior Established Business Relationship
Companies with a prior established business relationship with a customer can send text marketing to a consumer without written consent. A prior established business relationship is one of the following:
- A customer has inquired about a product or service in the last three months. The marketing message must only relate to that product.
- A customer has made a purchase from the company within the past eighteen months.
Emergencies
Text messages for emergency purposes are exempt from TCPA consent requirements. Natural disaster warnings are one example.
Health Care Messages
The TCPA doesn’t prohibit text messages delivering health care messages. Appointment reminders or Covid-19 alerts are two examples.
Tax-Exempt Non-Profit Companies
Charities and other non-profit companies can send messages without consent. The message cannot promote the exchange of goods.
In Closing
Text message marketing is a great tool when used properly. Failing to gather prior consent can lead to expensive fines and worse. Compliance is the best way to avoid TCPA litigation, and TCPA Protect can help.
