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.

SMS consent is a consumer’s clear, documented permission to receive marketing text messages from a business, typically given through an opt-in form or similar action.

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.

TL;DR

• Tools like TrustedForm help capture and retain independent proof of consent, giving both buyers and sellers the evidence needed to audit leads, defend against disputes, and reduce risk.

• TCPA SMS compliance starts with prior express written consent (PEWC). That means consumers must clearly agree, in writing, to receive marketing texts, with proper disclosures shown before they opt in.

• For marketers, compliant SMS consent means using clear, conspicuous opt-in language, separating consent from other terms, and capturing key details like what the user saw, when they consented, and how it was collected. Avoid implied consent and make opt-out simple and immediate.

• For lead sellers and publishers, documented consent is everything. You need to prove the full consent experience, including the form, disclosure language, timestamp, and source. First-party consent is stronger, but if you’re using third-party leads, you need transparency into how that consent was obtained.

• For buyers, don’t assume consent. Verify before you scale. Ask for per-lead proof, confirm the scope of consent matches your outreach, and watch for gaps like missing disclosures or unclear sourcing.

• While courts and regulators continue to debate whether texts are always treated the same as calls under the TCPA, the safest compliance position today is to treat SMS like calls and operate accordingly.

How text message communications became included in the TCPA

The original TCPA of 1991 did not specifically mention SMS or text messages. The law was enacted before text messaging was a common form of communication.

The Federal Communications Commission (FCC), which is the agency responsible for implementing and enforcing the TCPA, has repeatedly clarified and expanded its regulations to address evolving communication technologies. In a series of rulings, the FCC has interpreted the TCPA’s restrictions on “calls” to also apply to text messages. The reasoning is that a text message is a type of “call” under the TCPA when it is delivered to a wireless phone and involves an automated telephone dialing system (ATDS).

The FCC has explicitly stated that unsolicited text messages, like unsolicited voice calls, are a violation of the TCPA. Federal courts have generally deferred to the FCC’s interpretations, finding that the TCPA’s purpose of protecting consumers from unwanted, automated intrusions extends to text messages. While there have been some recent court decisions that have challenged the FCC’s broad interpretation and ongoing cases that continue to challenge previous rulings, the consensus for compliance remains that TCPA rules apply to text messages.

What is SMS consent under the TCPA?

Applying the TCPA requirements to SMS messages would establish that you must have prior express written consent (PEWC) 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 potential 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 – $1,500 fines and lead to multi-million dollar class action lawsuits.

Main TCPA SMS consent requirements

Businesses should present clear, unambiguous written consent language to the recipient before sending sales or marketing SMS messages to U.S. consumers with respect to TCPA compliance.

While manual compliance checks can be tedious, using automation tools like AI humanizers can help refine and simplify consent-related communication, ensuring messages are clear, natural, and compliant.

1. Prior express written consent SMS

Businesses must obtain clear and unambiguous written consent from the recipient before sending sales or marketing-related SMS messages.

The consent should:

• 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 should be informed:

• They are agreeing to receive automated marketing messages.
• Consent is not a condition of purchase.
• Identify message frequency (e.g., “Up to 5 messages per week”).
• Carrier 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 for confirmation purposes, 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 to be contacted.

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 (PEIP) 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. Use a specialized transactional SMS provider to ensure timely message delivery as well as segmentation and personalization options for SMS campaigns.

Utilize dedicated SMS marketing platforms, such as Klaviyo or SendPulse, to send automated SMS notifications that adhere to SMS consent regulations.

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 that an agreement and acceptance of terms is being entered into by the individual.
• Avoid implied consent.

How are you obtaining consent to send sms messages?

When it comes to SMS, obtaining consent is the foundation of both compliance and customer transparency. There are several ways to present SMS TCPA consent:

• Web forms: Include an unchecked opt-in box with clear disclosure language explaining what types of messages the consumer will receive and that consent isn’t a condition of purchase.
• Text-to-join campaigns: Consumers can voluntarily text a keyword to a short code, which could trigger an automated disclosure and web links to the full privacy policy and campaign terms.
  • However, you should not rely on simple keyword submissions as full consent to receive all future communications (transactional or marketing messages). You should still look for an opportunity as soon as possible to present and document the full PEWC language, agreement, and terms.
• Point-of-sale or event sign-ups: Paper or digital forms at checkout counters, trade shows, or service visits, where customers can be presented with opt-in consent language to receive SMS.
  • Avoid layering or mixing communication channels or consent to receive different kinds of SMS messages in one block consent disclosure or even from the same phone number. For example, requesting a phone number to send a text message with a receipt of a transaction or appointment reminder. Consent to receive sales, marketing, and promotional information should be presented separately.            
• Click-to-consent buttons: On digital forms, ensure consent language is unambiguous (e.g., “I agree to receive marketing texts…”) and that the submission button language indicates a clear agreement action (e.g., “I agree” or “Agree and Submit”).
• Consent disclosures above the button: The opt-in consent language and terms should be positioned above the Agree/Submit button.

Best practice is to document every instance of consent using independent proof, such as session replays or certificates from tools like TrustedForm, and to store records securely for years. This way, if your practices are ever challenged, you have evidence of the consent transaction and language as part of your compliance documentation and legal defense.

SMS consent examples

These examples are for informational purposes only and should not be construed as legal advice. You should always consult with your own attorney prior to making any personal or business decisions related to the TCPA or other laws and regulations.

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. Up to 3 messages/week.”

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. Up to 3 messages/week.”

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 a 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 requirements, especially when it comes to handling SMS consent language. TrustedForm Verify steps in as a game-changing solution, simplifying the entire consent to contact compliance 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.

FAQs

1. How can I get documented consent for SMS?

To obtain documented SMS consent, businesses should use clear opt-in methods that capture and store proof of the consumer’s agreement. This typically includes web forms with unchecked consent boxes, text-to-join campaigns with proper disclosures, or in-person sign-ups using digital or paper forms. Each consent record should include the date, time, method of capture, and the exact consent language presented. 

Using tools like TrustedForm can help securely document and retain this information for compliance and audit purposes.

2. What are some best practices for SMS opt-in and user consent?

 Start with clear, straightforward language that explains exactly what users are signing up for. Make sure consent is explicit, not implied, and always include required disclosures like message frequency, potential costs, and opt-out instructions. 

Keep the consent request separate from other terms, and place it clearly above the submission button. It’s also important to provide an easy opt-out method, such as replying “STOP,” and to maintain detailed records of every opt-in. Consistency, transparency, and proper documentation are key to staying compliant and building trust.

Conclusion

The TCPA has established specific rules that require businesses to secure prior express written consent from consumers before generating sales and marketing calls or SMS using automated technologies. 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.

The post A complete guide to TCPA SMS consent for marketers appeared first on ActiveProspect.

During our webinar “Mastering TCPA compliance in your SMS marketing program” we had the chance to sit down with attorney and TCPA compliance expert Alexandra Krasovec, Partner at Manatt, Phelps & Phillips, LLP to discuss the future of SMS marketing.

Now, we would like to dive deeper into the main questions for marketers to consider when leveraging SMS marketing strategies.

An overview of the FCC text message regulations

Before we jump right in, let’s go over some key points to keep in mind regarding FCC text messaging regulations:

1. Consent: The FCC requires that businesses and organizations obtain prior express written consent (PEWC) from consumers before sending them text messages for marketing purposes, and prior express invitation or permission (PEIP) for informational purposes. This consent must be clear, voluntary, and obtained without requiring the consumer to purchase a product or service.
2. Opt-out: Text messages must include a clear and simple way for recipients to opt out of receiving future messages. This can be done by providing a reply keyword (e.g., “STOP”, “opt-out”, etc.) that allows recipients to unsubscribe from the messaging service.
3. Identification: Text messages must clearly identify the sender or the business on whose behalf the message is being sent. This can be done by including the sender’s name, contact information, or a recognizable brand name.
4. Frequency and content: Text messages should not be sent excessively or in a manner that could be considered harassing or abusive. Additionally, messages should not contain misleading or deceptive content.
5. Emergency messages: The FCC allows certain exemptions for emergency messages, such as those related to public safety or health alerts. These messages may be sent without prior consent, but they should still provide recipients with an option to opt out.

It’s important to note that these regulations primarily apply to text messages sent for informational or marketing purposes. Personal, non-commercial messages between individuals are generally not subject to FCC text message regulations.

What’s informational and what’s marketing?

As Alexandra Krasovec explains, “The TCPA takes a very broad view of what constitutes marketing. Basically, anything that’s not purely informational is really considered potentially marketing.”

For example, as Alexandra goes on to explain, even seeking out a Google review could potentially be considered a marketing strategy. If you think about it, the core objective behind such a request is to gain a public advantage, essentially, to boost engagement or to attract potential customers. So, any activity that closely resembles this effort should be classified as marketing. This classification is significant because the requirements for consent vary between informational and marketing communications.

Recapping what happened with the 2025 FCC TCPA updates

The first half of 2025 was a whirlwind for marketers navigating the evolving regulatory landscape of the TCPA. In January 2025, just days before the FCC’s one-to-one consent rule update was set to take effect, the agency issued a surprise order delaying its implementation by one year. This rule would have required telemarketers to potentially obtain separate, specific consent for each individual seller listed in a lead form, raising the bar for what qualifies as prior express written consent. 

The marketing industry broadly welcomed the delay, as it temporarily preserved the ability to rely on more flexible or looser, aggregated consent frameworks. However, the story didn’t end there. In a dramatic turn, the 11th Circuit Court of Appeals later further vacated the one-to-one consent update, ruling that the FCC had overstepped its statutory authority to redefine prior express written consent (PEWC). That decision helped further nullify the rule update, removing the more strict consent standard requirement.

Meanwhile, in April 2025, the FCC announced another key delay – this time to a component of the new consent revocation rule, which would have required that a consumer’s opt-out request apply universally to all communications from a business, both marketing and informational messages. That portion of the rule was postponed by one year, until April 11, 2026, giving industries like finance and healthcare more time to adapt their systems. But in January 2026, the consent revocation rule was pushed back once again, this time to January 31, 2027.

Altogether, these shifts underscore just how dynamic – and high-stakes – the compliance landscape remains for performance marketers and lead generators.

If I’m engaging in SMS marketing, am I required to comply with the FCC TCPA text message update?

As attorney Alexandra Krasovec says: “Definitely. If you’re engaging in SMS, you’re not exempt from the FCC order.”

She goes on to advise that “if you are engaging in this activity, you should check your marketing, your disclosures for prior express written consent, your vendor agreements, and the other activities you’re engaging in.”

What if I’m not using an Automatic Telephone Dialing System (ATDS)?

According to Alexandra Krasovec, “We are definitely in a gray area still”.

As she goes on to elaborate, the legal landscapes in different Circuits of the US courts of appeals are quite varied with regard to decisions involving ATDS. For instance, the Third Circuit appears to be leaning towards ruling that certain systems are considered ATDS if they just have the capacity to store phone numbers, whereas the Ninth Circuit emphasizes the method of generating phone numbers – suggesting that if numbers are not produced randomly or sequentially, the use of the system may not be problematic.

However, this topic is far from settled as the contentious issue hinges on the “capacity” of a system to operate as an ATDS. It’s a complex question that requires careful examination by entities engaged in outreach communication. A categorical stance asserting the absence of ATDS usage can be precarious.

It’s about probing into the capabilities of your communication system. For example, even if you believe your calls are made based on a predetermined logic, any element of randomness introduced by the system, such as randomly selecting between two simultaneous matches, could classify it as having ATDS potential, and you wouldn’t even know it.

Consequently, businesses are faced with two potential approaches: conducting an in-depth assessment of their communication systems to ascertain alignment with legal standards or proceeding with caution by assuming ATDS usage and securing the necessary consents. The choice is pivotal and should be determined through meticulous risk assessment and compliance strategies.

At the end of the day, as Alexandra Krasovec points out, there’s a compelling argument in favor of being fully prepared by having all necessary consents documented. Doing so can simplify matters significantly. In the event of a TCPA claim, possessing a properly filled consent record means you’re equipped with evidence to present to any challenger who might arrive with allegations. 

This documentation can demonstrate that consent has been obtained and that disclosure obligations have been met. Consequently, should any disputes arise, you’ll find yourself in a more advantageous position than someone who has to endure a lengthy legal process to confirm whether their system qualifies as an ATDS or not.

What can I use to gather and store proof of consent?

TrustedForm provides independent proof of consent that can be used for legal TCPA compliance. Whether you generate leads or purchase them from independent vendors, TrustedForm certificates provide documentation of consent to contact by phone call or text message and insights about the origin and authenticity of each lead.

By adding the TrustedForm web SDK to your web form, TrustedForm records the lead generation event as it happens and provides proof of consent through a TrustedForm Certificate.

The unique certificate can be easily accessed, reviewed, and shared through a URL.

Do state laws differ in regard to the TCPA?

As expressed by Alexandra Krasovec, “State laws do differ from the TCPA in many ways that you might not expect. In some areas, like call times for example, [they are even] conflicting.”

In this regard, Alexandra points out that if you operate as a website publisher or assist your clients in generating leads, determining the required consent becomes a key decision point. Will you collaborate with your lead buyers to define the extent of consent they need? Will there be a joint effort to review and accept the terms of disclosure, ensuring they meet their needs? Or will you opt for a more universal consent form? Pursuing a one-size-fits-all approach comes with its own set of implications, especially with varying state regulations, so you might want to be aware of that.

How long does consent last?

According to Alexandra Krasovec, “Consent is technically good until revoked.”

However, it’s important to note that this isn’t always straightforward. State-specific laws might place temporal limits on consent validity – for example, Georgia enforces a five-year limitation. Other states may be considering similar regulations.

The durability of consent is further complicated by the issue of phone number reassignment. If a customer changes their number, the consent given earlier may no longer be applicable, as the new owner of that number hasn’t agreed to the same terms. Over time, there’s an increased risk of what’s known as “stale consent,” where the contact details you have are no longer up-to-date. 

To mitigate this, Alexandra advises implementing internal policies that regularly verify ownership of the contact information. “Don’t just think ‘I get the consent once and I’m done.”

FCC and SMS outreach compliance 

The TCPA of 1991 did not specifically mention SMS or text messages. The law was enacted before text messaging was a common form of communication.

However, the FCC, which is the agency responsible for implementing and enforcing the TCPA, has repeatedly clarified and expanded its regulations to address evolving communication technologies. In a series of rulings, the FCC has interpreted the TCPA’s restrictions on “calls” to also apply to text messages. The reasoning is that a text message is a type of “call” under the TCPA when it is delivered to a wireless phone and involves an automated telephone dialing system (ATDS).

The FCC has explicitly stated in its interpretations that unsolicited text messages, like unsolicited voice calls, are a violation of the TCPA. Federal courts have generally deferred to the FCC’s interpretations, finding that the TCPA’s purpose of protecting consumers from unwanted, automated intrusions extends to text messages. While there have been some recent court decisions in the second half of 2025 that have challenged the FCC’s broad interpretation, the consensus advice for a defensible compliance strategy remains that TCPA rules apply to text messages.

FCC SMS compliance best practices

The FCC SMS opt-in regulations lay out specific requirements for businesses and marketers who want to send SMS messages to consumers, especially for marketing or promotional purposes.

Here’s an overview of the key recommended FCC SMS compliance best practices to help you text with confidence:

1. Get Prior Express Written Consent (PEWC)

• Opt-in is required before sending marketing texts. Consumers must knowingly give their mobile number and agree to receive SMS communications.
• Consent must be “clear and conspicuous.” Don’t bury it in a long privacy policy.
  For marketing/promotional SMS, the opt-in should be written (including digital forms) and clearly tied to the messages you’ll send.

2. Disclose key information at opt-in

• Identify your business or brand.
• State the type/frequency of texts (e.g., “up to 4 msgs/month”).
• Mention that message and data rates may apply.
• Provide a clear opt-out mechanism (“Text STOP to cancel”).

3. Provide easy opt-out

• Include an opt-out instruction (like “Reply STOP to unsubscribe”) in your initial and periodic messages.
• Honor opt-out requests promptly—typically immediately or within a reasonable timeframe.
• Ensure your SMS system can capture and process nonstandard opt-out phrases (“please stop texting me”) as revocation of consent.

4. Keep accurate records

• Maintain records of consent, including date/time, source, and the disclosure shown to the consumer at sign-up.
• Track opt-out logs to prove compliance if challenged.

5. Separate transactional from marketing messages

• Transactional or informational texts (appointment reminders, order updates) generally require a lower level of consent, but you must not slip in marketing content unless you have full marketing consent.

6. Protect consumer data

• Use secure storage for mobile numbers and consent data.
• Only use the numbers for the stated purpose.

7. Respect timing and frequency

• Avoid sending texts during prohibited hours (e.g., before 8 a.m. or after 9 p.m. local time).
• Send messages at a reasonable cadence to reduce complaints and improve deliverability.

8. Use recognizable sender IDs

• Make sure recipients can identify your business easily.
• Don’t spoof numbers or use misleading IDs.

9. Monitor third parties

• If you work with vendors or affiliates, ensure they comply with FCC SMS compliance rules, too.
• Use tools like TrustedForm to document consent and LeadConduit to filter and verify leads in real time.

10. Be aware of FCC SMS 160-character length

• A single text that exceeds the FCC SMS 160-character limit may be treated as multiple messages for TCPA purposes, even if it appears as one continuous message on the consumer’s phone.
• Courts may focus on how messages are technically transmitted rather than how they are displayed, which can affect DNC claims and statutory damages.
• To reduce risk, keep marketing texts concise and assume longer messages could count as more than one contact within a 12-month period.

Bottom line: Always secure clear consent, disclose who you are and what you’ll send, provide easy opt-outs, and maintain thorough records. Doing so helps you avoid fines, protect your brand reputation, and build trust with your audience.

Can I cold call someone and then ask for their consent?

If you are using ATDS technology for calling, “You can’t do that. You have to actually have the consent to make the outreach in the first place.”

As Alexandra Krasovec goes on to elaborate, in order to be compliant, gaining explicit consent is essential before sending any text messages. It is not permissible to text someone and request their permission afterward.

However, there’s a slight variation in approach whereby you can encourage a user’s proactive engagement with a call to action. For example, if a user opts into a text marketing campaign by responding to an invitation to text a provided number for more information or to join a program, it is acceptable. Under such circumstances, you could then text them a link to a web form to officially complete the signup process – this scenario is permissible.

Do I need express consent for ringless voicemail?

As expressed by Alexandra Krasovec, “Ringless voicemails are pre-recorded or artificial voice calls according to both the courts and the FCC. So, you are not going to be exempt from the automated calling provisions using ringless voicemail. You need to comply. So if your ringless voicemail is informational, then you need to get prior express consent, and if it’s marketing, you need prior express written consent.”

For a refresher on the differences between express consent and prior express written consent, check out this blog post.

Key takeaways about the FCC TCPA text message update

Here are the main takeaways that we were able to gather from our conversation with attorney Alexandra Krasovec:

1. “SMS is a great way to communicate with your customers. Super popular. Lots of people are doing it. You want to join the bandwagon, that’s totally fine. Just remember that when you do, you’re buying risk. So you’re going to want to be doing what you need to do to reduce that risk to the extent you can. TCPA is not a joke.”
2. “If you’re getting that consent, which again, you should, you have to make sure it’s right. So, if you think you’re getting informational consent, make sure that the communications you’re sending fit within that bucket. And if you are making marketing outreach, get that heightened prior express written consent.”
3. “Don’t assume that just because you’re sending text messages, you’re not using an ATDS.”
4. “If you’re saying you’re not using an auto dialer, the question that you should ask yourself is whether or not anyone has actually given you a legal opinion on that. And if they haven’t, consider whether or not you want to get one. If you are not collecting consent based upon that assumption, then that is probably a very important thing for you to consider.”
5. “You really do need to make sure that you’re obtaining the consent […] and if you’re in doubt on what level of consent, there is no harm in going conservative, right? Especially if you’re going through the trouble of collecting consent to begin with. It’s a small change to collect the consent versus the kind of gymnastics you’re going to have to do in arguing that you weren’t required to get it.”
6. “Pay attention to what the FCC is doing because we’re gonna have more rules soon.”

And ActiveProspect is here to help you stay updated and navigate these new TCPA regulations with confidence. Watch the entire episode and register for our FCC webinar series. 

If you’d like to never miss a TCPA update, subscribe to InsideCBM now!

DISCLAIMER: This page and all related links are provided for general informational and educational purposes only and are not legal advice. ActiveProspect does not warrant or guarantee this information will provide you with legal protection or compliance. Please consult with your legal counsel for legal and compliance advice. You are responsible for using any ActiveProspect Services in a legally compliant manner pursuant to ActiveProspect’s Terms of Service. Any quotes contained herein belong to the person(s) quoted and do not necessarily represent the views and/or opinions of ActiveProspect.

The post How FCC SMS regulations affect your marketing program appeared first on ActiveProspect.

Imagine you send a brand new discount offer to your existing customer base via text message as part of a new campaign. You expect some high conversion rates through this exciting new marketing channel, and at worst, a few unsubscribes.

Now, fast forward to a few months later. Suddenly, you’re hit with a $10 million fine for sending that very text message.

Why?

In this blog, we’ll explain why every D2C marketer using SMS messaging for marketing communications should be aware of the Telephone Consumer Protection Act (TCPA), and how to take every precaution to avoid costly litigation with protected SMS outreach efforts.

Over the past decade, Direct-To-Consumer (D2C) marketers have used email outreach to offer their customers and prospects promotions, discounts and alerts for new products. While email has become a successful marketing channel, its growing popularity has also created some issues. With nearly every D2C brand using email to communicate to their customers, inboxes are getting flooded daily – making it harder to get opens and stand out from the crowd. Additionally, marketing emails often don’t provide an opportunity for a two-way dialogue with consumers, which makes it more difficult to get feedback on their wants and needs from your brand. To increase the efficiency of your marketing emails, consider following DMARC policy to maintain a high level of security.

Luckily, there’s another marketing channel that solves all of these problems and creates opportunities previously untapped: SMS messaging.

Why SMS is the retail marketer’s next goldmine

As consumers grow more attached to their phone and bored of crammed inboxes, SMS has created a unique new opportunity for marketers. After all, the average person spends a whopping four hours per day on their mobile device and checks their phone over 150 times per day. Not only are consumers spending more time on their phones, but it’s also increasingly their preferred method of communication: More than 75% of consumers say they prefer to receive promotions via text messages than while browsing the internet or social channels. Consumer trends also show that they respond much more quickly to texts than email – 90 seconds compared to 90 minutes, respectively.

Source: Chatitive.

The variety of use cases for SMS are abundant. Texts can be used for a wide range of marketing purposes, from new user acquisition and remarketing and reengagement promotions, to creating a two-way dialogue between the brand and customers that builds stronger relationships. Ecommerce brands can even use texts to remind customers of abandoned shopping carts and increase conversions.

Teams route that reminder through an ecommerce purchase handoff so the link reopens the cart and keeps the payment step consistent.

The Catch to SMS: Potential TCPA Violations

Unfortunately, there is a danger to SMS outreach that D2C brands must be vigilant in preventing: Telephone Consumer Protection Act (TCPA) violations. TCPA legislation requires prior, express written consent for marketers to contact consumers via auto dialer or text message – an increasingly difficult challenge for D2C marketers looking to take advantage of the SMS channel.

Whether you’ve already entered into SMS outreach or are simply considering it, it’s important to be aware of the hefty fines you can incur if not appropriately documenting proof of consent. If a consumer files a complaint, the TCPA states that the burden of proof is on the advertiser. Even consumers who have previously opted in to your brand’s communications may forget and attempt a lawsuit. TCPA violations can cost anywhere from $500 to $1,500 per text. For example, if a business sent 10 text messages to one consumer, there is a potential statutory fine of $5,000 to a single consumer if they can prove a willful TCPA violation. These fines can increase even further if there are class action claims – which are increasingly being sought out by “professional TCPA plaintiffs” who offer consumers settlement shares if they bring violations to their attention through websites like these.

Big names from across the D2C industry have been hit for not taking the proper precautions in their SMS outreach. After sending unsolicited text messages with a discount offer to thousands of customers, Jiffy Lube was hit with a $47 million fine. American Eagle sent over 600,000 text messages to cell phones without consent, or after the recipient had opted out of future messages, resulting in a TCPA class action suit. In the end, American Eagle had to pay $14.5 million for its violation. Pizza Hut paid out $6 million in a settlement for sending out similar unsolicited texts, and Steve Madden paid out a class action settlement for $10 million after it sent text messages promoting a holiday sale on footwear and other products.

To help D2C marketers avoid these lawsuits and hefty settlements, ActiveProspect developed TrustedForm as the original lead certification product. It works by generating a unique certificate for each customer or prospect that is stored with each record, and includes a video replay of the prospect engaging with the web form. TrustedForm is considered the highest standard for documenting proof of TCPA consent for both outbound calls and text messages. With its video replay, marketers can easily pull the URL with video playback to dismiss a potential lawsuit before it ever becomes a problem.

SMS outreach – done with the proper TCPA precautions in place – shows incredible promise as a marketing channel in the D2C space. At ActiveProspect, our platform works to help D2C marketers take advantage of all outreach channels in a safe, cost-efficient, and scalable way.

To learn more, reach out to our D2C experts today!

The post How Retail Brands Can Take Advantage of Booming SMS Outreach – Safely appeared first on ActiveProspect.