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The materials available at this website are for informational purposes only and not for the purposes of providing legal advice. You should consult with your legal counsel regarding compliance with all applicable federal and state laws, including, but not limited to, the TCPA.

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What is the TCPA?

The Telephone Consumer Protection Act (“TCPA”), enacted by Congress in 1991, is a federal statute governing telecommunications. The TCPA prohibits any person or entity from making any call using an automatic telephone dialing system or an artificial or prerecorded voice to a cellular telephone number without the prior express consent of the called party. Text messages are usually treated the same way as calls under the TCPA, and they are subject to the same legal requirements. Further, it is established that “prior express consent” almost always means prior express written consent. In sum, the TCPA requires individuals, businesses, and organizations to obtain express written consent from individuals prior to sending any SMS or MMS text messages to them for marketing purposes. As stated in our Terms of Service https://emotive.io/terms, all customers have a legal obligation to comply with all applicable federal and state laws regarding communications with third parties, including compliance with the TCPA. Since October 16, 2013, businesses have been required to obtain “prior express written consent” from their customers before being legally allowed to send them marketing text messages. The Telephone Consumer Protection Act (TCPA) itself does not specifically define “prior express consent” in the statute, but an agreement, written or oral, clearly indicating consent to receive automated marketing text messages at a particular number constitutes prior express consent. “Written consent” makes it sound like you have to give your customers a form to sign before you can send them text messages, which would be tedious, clumsy, and not particularly viable or convenient. You can technically do this, but there’s another option: the E-SIGN Act. The E-SIGN Act states that there is no need to actually put pen to paper to give “written consent” due to the nature of our digital environments. These days, a website form submission or text message qualifies as written consent, which saves time and effort for everyone involved. So, what exactly do you and your business need to do to obtain this type of consent from your customers? There are a few primary components:
  1. When asking your customers to participate in your text message marketing program (either through a web form, point of sale, mobile opt-in, or even pen & paper), you must disclose the following: “By participating, you consent to receive automated marketing text messages”
  2. This “automated marketing text messages” disclosure must be made “clear and conspicuous” to your customers before they opt in to your SMS marketing campaign. Legal language aside, this is the simplest requirement. All you need to do is display the “automated marketing text messages” disclosure in close proximity to wherever you’re asking your customers to enter their mobile phone numbers. Display that disclosure right in front of the consumer—ideally by tying it to the initial participation request message
  3. That consenting to receive such messages is “not a condition of purchase”. The meaning behind the term “Consent is not a condition of purchase” is that consumers do not need to provide their phone numbers and give their consent to receive autodialer SMS messages before they are allowed to make purchase with a seller. For brands gathering opt-ins on checkout, we recommend leaving the phone number field “optional” for this reason.

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Why does this matter?

If you do not comply with the TCPA, you may be subject to legal action. The TCPA provides for a private cause of action by an individual, on behalf of themselves and/or on behalf of a class, to recover damages. Violations of the TCPA can lead to significant financial consequences: damages range from a minimum of $500 per text and up to $1,500 _per text _sent in violation of the TCPA. If you are unsure whether any telephone numbers on your contact list meet the TCPA’s requirements for prior express consent, we advise you to consult your organization’s compliance team and/or legal counsel. Further, you should not upload any contact information to Emotive unless and until you have verified that proper prior express consent has been obtained.

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Best Practices

Best practices when obtaining express written consent include:
  • The written consent should be clear and conspicuous so the recipient is well aware that they are consenting to receipt of text messages. As one example, do not bury your express consent language deep in your terms and conditions.
  • The individual providing consent should be required to provide affirmative acceptance of the specific consent provision, in addition to any general acceptance of the terms and conditions of use of your company’s website or product.
  • The consent should specifically authorize telemarketing text messages sent using an automatic telephone dialing system.
  • The consent should contain a representation that the person who is entering the phone number has authority to provide this number for the purpose of receiving text messages. Remember that phone numbers can easily be reassigned from someone who gave consent to someone who did not give consent, at any time. You may consider asking your contacts to reaffirm consent periodically. If they refuse consent or do not respond, then consider removing them from your contact list. If they refuse consent and/or you remove them from your contact list, you must notify Emotive as soon as possible and not later than 24 hours thereafter so we can remove the phone number from our system.
  • The consent should clearly state that the individual may revoke his or her consent at any time and also provide an “opt-out” mechanism for individuals who do not want to receive further communications. Revocation, unlike prior express consent, does not need to be in writing. If you receive a revocation of consent, in any form, you must notify Emotive as soon as possible and not later than 24 hours thereafter so that we can remove that phone number from our system.
  • You should maintain a copy of each consent you receive.
  • You also should also maintain an internal “do not call” list for individuals who have requested not to be contacted.
  • Consent to receive text messages should not be a condition of purchase.
  • Finally, check the National Do Not Call registry frequently. Under the TCPA, you are not allowed to contact any numbers on the Do Not Call registry, regardless of method, unless the individual has given express written consent. It is important to cross-check your own contact list with the Do Not Call registry and remove the contacts you do not have consent from and reaffirm consent with any contact who appears on the list that you do have consent from.

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Language Guidelines

Here is an example of language you may consider using to obtain customers’ express written consent to receive text messages. This is only an example, and should not be relied upon as legal advice. You should consult your legal counsel regarding your company’s specific compliance requirements and considerations to ensure that you are following all applicable federal and state laws, including the TCPA.
I agree to receive recurring telephone calls and/or SMS or MMS text messages for marketing purposes at the phone number provided, including but not limited to calls or texts sent using an automatic telephone dialing system or an artificial or prerecorded voice. I am authorized to consent to receive text messages sent to the phone number provided. I understand that I may revoke consent at any time. I understand that consent is not a condition of purchase. Message and data rates may apply. View our Terms of Service for details.