SMS Consent
SMS consent: Meaning and main requirements
Under the TCPA (Telephone Consumer Protection Act), obtaining proper consent for SMS marketing is a critical requirement. Businesses must secure prior express written consent before sending any marketing or sales or promotional text messages. This consent is essential for legally sending marketing SMS and is non-negotiable.
Without documented consent, sending promotional text messages is considered a violation of the law, which can lead to serious legal consequences and damage consumer trust.
SMS consent meaning for Marketing vs. Informational messages
It’s important to highlight that the FCC’s TCPA rules distinguish between marketing and informational messages, including their respective consent requirements:
- Marketing messages: These are typically promotional messages that are intended to advertise a product or a service for purchase.
As a standard of consent, marketing messages respond to Prior Express Written Consent (PEWC) rules.
Prior Express Written Consent (PEWC) is a legally required form of consent under the Telephone Consumer Protection Act (TCPA). This consent must be clear, unambiguous, and documented in writing, especially when using autodialed calls, prerecorded voice messages, or text messages to reach consumers. - Informational messages: Informational texts typically convey information that is necessary or beneficial to the recipient, rather than primarily promoting sales. Examples of these types of messages include appointment reminders, fraud alerts, and delivery notifications. Informational messages fall under the Prior Express Invitation or Permission (PEIP). This type of TCPA consent allows businesses to legally contact consumers for both marketing and informational purposes via phone calls or text messages. PEIP specifically applies to calls or messages made using non-autodialed systems or prerecorded messages.
Check this guide if you want to learn more about PEWC, PEIP, and other TCPA consent standards.
SMS consent: Main requirements
Businesses must comply with TCPA regulations when obtaining consent for sending commercial text messages. The key requirements for SMS consent include:
- Prior Express Written Consent (PEWC): Businesses must obtain written consent from recipients before sending marketing SMS messages. The consent should clearly state the recipient’s agreement to receive SMS messages from the business and specify the sender’s phone number.
- Clear and conspicuous disclosure: Consumers must be informed prior to giving consent that they are subscribing to automated marketing messages. They should understand that providing consent is not a requirement for making a purchase. Additionally, important details such as message frequency and potential charges must be clearly disclosed.
- Opt-Out Option: Businesses are required to provide an easy way for recipients to opt out of future SMS messages, usually by allowing them to respond with “STOP” or other similar keywords. Instructions for opting out must be included in the initial SMS, and any opt-out requests must be processed within 10 business days.
- Consent record retention: Businesses need to retain proof of consent, including the method of collection, date, time, and specific consent language.
- Consent re-confirmation: Obtaining new consent is necessary if businesses plan to send messages beyond the original scope.
- Non-Marketing Messages: For non-marketing SMS, a prior express invitation or permission could be sufficient, which is less strict than prior express written consent.
Overall, businesses must ensure compliance with these requirements to mitigate legal risks, potential fines, and maintain consumer trust when sending SMS marketing messages under the TCPA.