TCPA for Text Messages: What You Need to Know About Obtaining Consent

10 Aug TCPA for Text Messages: What You Need to Know About Obtaining Consent

It’s well-known that text messaging, or SMS, is more effective than email outreach or cold calling for marketing. 98% of text messages are opened, and 95% of them are read (and responded to) within three minutes of delivery. By comparison, a high-performing email marketing campaign might have an open rate of less than 20%. And when it comes to phone marketing, only 20% of people say they answer calls they aren’t expecting.
Before you can initiate SMS campaigns, however, the Telephone Consumer Protection Act (TCPA) requires businesses to obtain consent. The TCPA applies to texts, calls, or voice messages sent to customers or leads via their landline or mobile phones. Ensuring you comply with the TCPA for text messages is critical to your campaign.
‌In this guide, we’ll explain:

• What the TCPA is 
• Why TCPA compliance is important
• What the penalties are for failing to comply
• What is required to obtain TCPA consent

As a bonus, we’ll also provide you with a TCPA consent example template.
‌DISCLAIMER: None of the information provided within this guide constitutes legal advice. Businesses are encouraged to seek legal counsel to ensure proper practices under the TCPA.
 
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What Is the TCPA?

The TCPA is a federal law, passed by Congress in 1991, that governs telephone solicitations. It applies to telemarketing, robocalls, voice mails, and text messages, restricting the use of each one. 
‌The TCPA is probably best known for creating the national Do-Not-Call registry, allowing consumers to opt out of unsolicited marketing messages from companies. However, it also requires companies to get prior express consent from consumers before attempting to communicate with them by phone or SMS. 
‌Following the rules set out in the TCPA is mandatory for all businesses.
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Why Is TCPA Compliance Important?

Besides respecting the privacy of your customers, failing to comply with TCPA rules can have significant legal consequences. Individuals that have received calls in violation of the TCPA can seek up to $500 per communication in statutory damages. If the violation was “willful or knowing,” damages can be tripled to $1,500 per communication.
‌The Federal Communications Commission (FCC) can seek penalties of up to $16,000 per violation or $26,000 for intentional violation. If you are using automation to send text messages without first obtaining consent, you can quickly run into significant fines. Judgments against businesses over the past few years have accumulated to nearly $1 billion.
‌In June 2020, the FCC announced a $225 million fine against two telemarketers for placing robocalls and failing to get consumer consent. In May 2021, a Fifth Circuit court ruled that receiving a single unsolicited text message was enough to justify a class action suit.
‌Some states, such as Florida, are enacting legislation that imposes additional penalties on top of federal regulations.
‌The penalties for not complying make it clear — ensuring you are getting the consent required by the TCPA in order to send text messages for your marketing campaign is essential to protecting your business interests.
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What Constitutes TCPA Consent?

The TCPA acknowledges two types of consent: prior express consent and prior express written consent.
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Prior Express Consent

Prior express consent is required for texts, autodial calls, or non-solicitation calls. Consent can be written or verbal. If someone has voluntarily provided their phone number before any texts are sent and there is a prior relationship between the parties, businesses can contact consumers — but only for the reason the consumer provided their number.
‌For example, if a lead fills out a form and asks for additional information about your business or sends you a text inquiring about something, you can respond — but only to the specific query. You may not initiate additional marketing messages or supply other offers in the future without express written consent.
‌Businesses need to be careful when defining their relationship with a consumer, however. If a phone number was voluntarily provided by the consumer directly or through an intermediary, that’s OK. If the number was captured by caller ID or a third party, it would not be sufficient for consent.
‌Any contact between business and consumer must be for normal business communication and closely related to the consent that was provided. Keep in mind that, at any time, consumers can revoke consent. If they tell you they do not want to be contacted at that number, that serves as notice for you to cease communications.
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Prior Express Written Consent

Calls or texts to cell phones for advertising or telemarketing require written consent expressly for the purposes of receiving marketing messages. The written agreement must include clear and obvious disclosures informing consumers that, by signing or otherwise authorizing the agreement, they are allowing advertising calls or text messages.
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How to Obtain TCPA Consent

Businesses can obtain TCPA-required consent through a variety of means — including written signatures, emails, texts, or website forms — as long as the required disclosures are met. Marketers must also disclose the business or service provider they’re working for.
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Sample Language for TCPA Compliance

Here are two sample forms that you may want to adapt for use in obtaining consumer consent for TCPA compliance.
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By clicking the button below, you consent for [COMPANY NAME] and its service provider [SERVICE PROVIDER] to use automated technology, including calls, texts, and prerecorded messages, to contact you at the number and email provided for [COMPANY NAME] offers. This consent is not required to make a purchase. Clicking the button below constitutes your electronic signature.

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By clicking, I am providing my electronic signature expressly authorizing [COMPANY NAME] to contact me by email, text, or phone (including an automatic dialing system or artificial/prerecorded voice) at the home or mobile phone number above. I understand I am not required to sign or agree to this as a condition to purchase.

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Even if you only plan on using SMS messaging, you should ask for email and phone consent at the same time in case you want to follow up in the future.
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Best Practices for TCPA Compliance

Best practices for TCPA compliance and reducing litigation risk should follow the three Cs: consent, compliance, and communication.
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Consent

‌Businesses must obtain prior express written consent under TCPA regulations before initiating telemarketing activities. You’re allowed to contact customers for non-marketing purposes if you’re responding to a specific transaction, but that transaction does not provide consent for subsequent marketing.
You should also check the Do-Not-Call (DNC) registry to avoid texting consumers that have placed themselves on the DNC list. The DNC registry is maintained by the Federal Trade Commission (FTC). 
‌The Mobile Marketing Association’s guidelines for best practices for SMS consent stipulate that:

• Instructions for STOP and HELP should be capitalized or in bold lettering
• “Stop” replies should be treated as Do Not Call or Do Not Text requests
• ‌Disclosure should be given that messaging and data rates may apply
• ‌Acceptance boxes or terms and conditions should not be pre-checked  — consumers must indicate their acceptance of the terms by manual selection
• ‌Reference to a website where complete terms and conditions are available for viewing should be made

‌These guidelines also recommend removing consumer phone numbers that have been inactive for six months or more from marketing lists. 
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Compliance

Once you’ve received written consent from a consumer, you need to keep a record showing the type of communication they’ve agreed to receive. Since records are to be kept for at least five years from the date consent was obtained, you should also have a way to track the date of consent.
‌Include a mechanism for opting out for consumers that wish to discontinue further marketing communication.
‌Businesses that conduct telemarketing should download and scrub the DNC registry at least every 31 days. Unless a consumer has provided written consent or has an established business relationship with you, calling someone on the DNC list is a violation of the TCPA.
‌You’re also required to maintain an internal DNC list. If consumers do opt-out, you need a procedure to ensure you do not send additional communications to that number. Procedures need to include a written DNC policy that complies with legal requirements. Personnel must also be trained in the use of the DNC list.
‌Even if a consumer previously provided consent, if they subsequently revoke it, future calls and texts to the consumer are prohibited under the TCPA.
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Communication

Avoid making multiple attempts to text consumers on the same day. You should also limit your contact attempts to the same number. Most legal actions alleging TCPA compliance violations are from consumers that have received multiple consistent calls and texts.
‌The TCPA prohibits communications for marketing purposes before 8 a.m. or after 9 p.m. local time, even if consent has been granted.
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Conversational AI Texts Drive Revenue

SMS messaging is an incredibly effective way to put your business in front of consumers, but ensuring TCPA compliance for text messages is critical to your campaign. Now that you know what it takes to get an SMS campaign running, partner with someone who can take your conversion rates to the next level. 
‌Aktify improves conversations between brands and people with conversational AI that converts leads into phone calls. Using robust data science and machine learning to delight customers with thoughtful conversations and well-curated gestures, Aktify’s solutions integrate with CRMs and marketing automation platforms. Automated contacting, scheduling, and nurturing can provide as much as a 10x ROI for our clients.
‌ Contact Aktify today and learn more about how we turn science into revenue.