Texting and Consent: What Businesses Need to Know About the TCPA

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Companies in a variety of sectors use SMS messaging today as a mission-critical tool and as a customer service medium. However, those leveraging this format must fully understand the premises of an old regulation which regulates the way businesses communicate with their customers – the Telephone Consumer Protection Act (TCPA).

What is TCPA?

The Telephone Consumer Protection Act is a law enacted in 1991 to regulate: telephone marketing calls,  the use of automatic telephone dialing systems (ATDS), and artificial or prerecorded voice messages. The law aims to protect consumers by preventing intrusive business practices and unwanted marketing messages by companies due to the rise of ATDS.

The TCPA allows individuals to file lawsuits and collect damages for receiving unsolicited telemarketing calls, faxes, pre-recorded calls or auto-dialed calls.

Relentless advancements in technology have resulted in new rules in TCPA regulation – with the latest one added in 2013. In 2015, the Federal Communications Communication (FCC) released it’s TCPA Omnibus Declaratory Ruling and Order (simply known as the Order) to further clarify the extent of the rule with regards to new technologies such as text messaging.


Despite clear rules about what businesses can and can’t do when it comes to contacting consumers by phone or text, many businesses still aren’t compliant.

In fact, the Federal Communications Commission (FCC) which oversees the TCPA received more than 4 billion complaints from US consumers about unwanted calls and texts in 2016. Many of these complaints were from customers who were still getting calls or texts after repeated requests for them to stop.

Often these complaints led to lengthy litigation and hefty fines for companies that weren’t compliant with TCPA regulations. To avoid this happening to your business, it’s important to know what the TCPA says about SMS marketing and to know how to be text messaging compliant.

Texting and Consent

Although there are smaller TCP rules regarding consent and sending text messages, there are only two big ones that should be kept in mind to ensure text messaging compliance.

1. Prior express written consent (2013). A business must obtain the customer’s consent first before sending them text messages.

Consumer consent must be unambiguous, meaning:

  • The consumer must receive a “clear and conspicuous disclosure” that he/she will receive future calls that deliver auto-dialed and/or pre-recorded telemarketing messages on behalf of a specific advertiser;
  • That his/her consent is not a condition of purchase;
  • And he/she must designate a phone number at which to be reached (which should not be pre-populated by the advertiser in an online form).

Limited exceptions apply to this requirement, such as non-marketing texts from the consumer’s cellular carrier, debt collectors, schools, informational notices and healthcare-related calls.

When a customer initiates text conversation, prior express written consent is no longer required. However, even in this situation, there are certain guidelines that must be followed before responding to customer-initiated text:

  • The text must be expressly requested by the customer
  • The text must be a one-time-only message sent immediately in response to a specific consumer request.
  • The text must only contain the information requested by the customer with no other marketing or advertising information

2. Right to Opt-Out.

Consumers may revoke consent through any reasonable method, including orally. The Order clarifies that “Consumers generally may revoke, for example, by way of a consumer-initiated call, directly in response to a call initiated or made by a caller, or at an in-store bill payment location, among other possibilities.”

In the context of text messaging compliance, opt-out is supported with keyword ‘STOP’. When a consumer sends the word STOP, the business should take the customer out of all recurring texting programs and cease text message contact from there on forward.

Text Messaging Compliance

A business has a higher chance of getting in trouble with the TCPA when they attempt to manage their own SMS number database. Phone numbers of customers who opted-out already may not be removed quickly enough or may accidentally not get erased at all.

The best way to stay compliant with TCPA is to use an enterprise bulk messaging platform such as TeleMessage’s Mass Messaging. This platform has features that allow the administrator to automate opt-ins and opt-outs, allowing for a more efficient SMS marketing campaign.

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