SMS marketing is a potent tool for businesses to connect with their audience and boost conversions. Yet, it’s crucial to grasp the regulations of the Telephone Consumer Protection Act (TCPA) and the necessity of proper SMS consent to sidestep hefty fines.

This all-encompassing guide is your go-to resource, offering marketers a full understanding of TCPA SMS consent, from its definition to the essential requirements and the best approaches to crafting SMS consent language. We’ll also delve into how TrustedForm Verify can be a game-changer, streamlining SMS consent language and helping adhere to the TCPA.

What is SMS consent under the TCPA?

The TCPA directs that you must have prior express written consent to send individuals  marketing text messages. This consent is not to be taken lightly. It is the cornerstone of legally sending text marketing messages. Without it, any promotional SMS you send is a violation of the law, and that could lead to serious legal and consumer trust issues. When it comes to commercial text messages, there are no shortcuts – prior express written consent is the only way to go.

This means that unless you have documented prior explicit written consent from your customers to receive SMS messages, your sales and marketing campaign is taking on some legal risk. Failure to do so could lead to non-compliance and the potential for hefty fines or legal action from individual customers. Each TCPA violation can result in $500 – $1500 fines and lead to multi-million dollar class action lawsuits.

Main TCPA SMS consent requirements

Under the TCPA, businesses must follow strict rules for obtaining consent before sending sales or marketing SMS messages to consumers. Here are the main SMS consent requirements.

1. Prior express written consent

  • Businesses must obtain clear and unambiguous written consent from the recipient before sending sales or marketing related SMS marketing messages.
  • The consent must:
    • Be explicit (no implied consent).
    • Clearly state that the recipient agrees to receive SMS messages from the business.
    • Include the specific phone number from  which the messages will be sent.

2. Clear and conspicuous disclosure

  • Before consent is given, consumers must be informed that:
    • They are agreeing to receive automated marketing messages.
    • Consent is not a condition of purchase.
    • Message frequency (e.g., “Up to 5 messages per week”) must be specified.
    • Message and data rates may apply.

3. Opt-out mechanism

  • Businesses must provide a clear and easy way to opt-out of receiving future SMS messages.
  • Common methods include replying with “STOP” or other similar keywords.
  • Opt-out instructions must be communicated in the initial SMS message.
  • Opt-out requests must be processed within 10 business days after being received.
  • After receiving an opt-out request, businesses are allowed to send one more text to inquire about the reason for opting out, as long as the text is sent within 5 minutes after the opt-out request has been received and contains no promotional offers.

4. Record retention

  • Businesses must maintain proof of consent, which includes:
    • The method used to collect consent (e.g., web form, paper form, SMS opt-in).
    • Date, time, and specific language of the consent.

Tools like TrustedForm can help businesses securely obtain and store records of consumer consent.

5. Re-confirmation of consent

  • If a business plans to send messages outside of the original consent scope (e.g., different types of marketing), new consent must be obtained.

6. Non-marketing (informational) messages

  • For non-marketing SMS (e.g., appointment reminders), prior express invitation or permission may be sufficient. This is a less stringent standard of consent than “prior express written consent.” It applies to situations where the consumer has, in some way, invited or permitted the communication. Prior express invitation or permission can be oral or implied, while prior express written consent must be in writing.
  • Prior express written consent typically requires a higher degree of specificity regarding the types of communications the consumer is consenting to receive.
  • Written consent provides stronger evidence of the consumer’s consent, which can be crucial in the event of a TCPA dispute.

SMS consent language best practices and examples

When crafting TCPA SMS consent language, it’s critical to ensure compliance with TCPA regulations and provide clarity for your audience. Follow these best practices to stay compliant and user-friendly.

Be clear and unambiguous

State exactly what the user is consenting to: receiving automated marketing messages via SMS.

Disclose key information

Include:

  • The sender’s identity (company name).
  • That messages will be sent using an autodialer.
  • That consent is not a condition of purchase.
  • Frequency of messages (e.g., “Up to 5 messages/week”).
  • Potential costs: “Msg & data rates may apply.”

Include an opt-out mechanism

  • Clearly explain how users can stop receiving messages (e.g., “Reply STOP to unsubscribe”).
  • Keep it concise and easy to understand
  • Avoid jargon and lengthy explanations. Use simple, user-friendly language.

Ensure transparency in placement

  • Display the consent language above to the opt-in action (e.g., “Submit” button).
  • The submit or acceptance button should include the word “Accept” or some similar word or phrase recognizing an agreement and acceptance of terms is being entered into by the individual.
  • Avoid implied consent.

SMS consent examples

1. Website form opt-in

“By checking this box and clicking ‘Submit,’ you agree to receive automated marketing text messages from [Company Name] at the phone number provided. Consent is not a condition of purchase. Msg & data rates may apply. Reply STOP to unsubscribe. Msg frequency varies.”

2. Keyword opt-in (text-to-join)

“Text JOIN to 12345 to sign up for [Company Name] SMS alerts. By texting JOIN, you consent to receive automated marketing messages. Consent not required for purchase. Msg & data rates may apply. Reply STOP to unsubscribe. Msg frequency varies.”

3. Short, post-form confirmation

“Thanks for signing up for [Company Name] text alerts! You’ll receive up to 5 messages/month. Msg & data rates apply. Reply STOP to unsubscribe.”

4. Double opt-in

“Reply YES to confirm your subscription to [Company Name] SMS alerts. Msg & data rates apply. Reply STOP to cancel.”

5. Loyalty program consent

“Join our rewards program and get exclusive deals! By signing up, you agree to receive automated text messages from [Company Name]. Consent is not a condition of purchase. Msg & data rates may apply. Reply STOP to unsubscribe.”

The TCPA is a complex law with specific nuances and requirements. While these best practices can serve as a starting point, it’s crucial to seek legal compliance review of your specific Notice and Consent language and presentation. This will help to ensure that you’re meeting all the necessary TCPA requirements and minimizing the risk of legal consequences.

Manage SMS consent language with TrustedForm Verify

Businesses often grapple with the complexities of TCPA SMS consent regulations, especially when it comes to handling SMS consent language. TrustedForm Verify steps in as a game-changing solution, simplifying the entire process.

TrustedForm Verify helps you mitigate risk by checking and confirming that your requirements for notice and consent disclosures are used to obtain prior express written consent and presented digitally.

With TrustedForm Verify you can:

  • Evaluate compliance in a consistent manner that reduces the chance of errors that can occur through manual processes, especially when managing multiple vendors.
  • Increase productivity by saving time through automated tasks that reduce the need for time consuming manual reviews.
  • Consolidate the data you need to assess how well multiple vendors are complying with your requirements.

Moreover, the TrustedForm Verify 1:1 Consent Check feature enables you to programmatically verify that each lead has given consent to be contacted by your specific brand, company name or entity in a one-to-one manner to scale your auditing capabilities. This feature helps you check compliance with the latest FCC one-to-one rule updates and reduces the risk of penalties in a scalable manner.

Conclusion

The TCPA has established specific rules that require businesses to secure prior express written consent from consumers before sending sales and marketing SMS messages. It also underscores the need for clear and conspicuous SMS consent language that spells out the consumer’s consent to receive text messages and includes the business’s identity and contact information, ensuring a transparent and legally compliant approach.

Furthermore, the TCPA requires businesses to provide a simple and clear way for consumers to opt out of receiving messages, and to honor these requests in a timely manner. They also need to keep thorough records of consumer consent, so they can demonstrate compliance with the law.

To help you stay compliant, there are some great tools out there, like TrustedForm Verify. It makes it easier to manage your SMS consent language more effectively, helping you make more informed decisions and optimize your marketing strategies.

Following the TCPA’s SMS consent guidelines and leveraging tools like TrustedForm Verify gives your business a solid foundation for running SMS marketing campaigns that are not only effective but also ethical and compliant. By taking these steps, you can earn the trust of your customers, respect their privacy, and set your marketing efforts up for long-term success, all while minimizing the risk of legal issues and penalties.

Tagged:

, ,

Written by Marialuisa Aldeghi

Marialuisa brings a wealth of expertise to the table as an accomplished content writer and strategist with years of experience in the B2B digital marketing landscape.

Stay in the loop! Subscribe to the recAP email list to get our latest updates and insights.