What Is Express Written Consent?

Disclaimer: Please note that this is not legal advice and is for informational purposes only. It is not intended to substitute for advice from qualified legal counsel, nor is it to assist you or help you be compliant as you assume 100% responsibility in all legal matters.

Eager to hit the ground running with text message marketing? Before you start building up your SMS marketing list, you’ll need to do some research on your own, and read up on consumer protection regulations.

Let’s start with the basics: obtaining express written consent from customers. 

In this guide, we’ll cover some things you need to know about express written consent, including what it is, why it’s necessary, and how to properly earn consent to stay compliant. 

What Is Express Written Consent?

The TCPA defines express written consent as a written agreement, signed by the consumer receiving the call or text, with a clear and visible disclosure that authorizes the business to send telemarketing communications.

In other words, consumers must agree to receive SMS marketing communications or phone calls from your business.

Prior written consent requires you to be upfront and transparent in explaining the program consumers are signing up for and what messages they can expect from you (more on this below). You must fully disclose your program’s terms and conditions, privacy policy and the number of text messages you plan to send per day, week or month.

Note that the term “written” doesn’t necessarily mean handwritten consent. It includes other forms of permission that a business can document and save, such as a text message reply or an online form submission.

Express written consent falls under the U.S. Federal Communications Commission’s (FCC) Telephone Consumer Protection Act (TCPA). The TCPA regulates telemarketing and SMS marketing and protects consumers from unwanted communications.

Learn more about text messaging laws in the United States, Canada, the European Union and the United Kingdom.

Why Is Express Written Consent Important?

Express written consent is federal law. Abiding by TCPA regulations helps you steer clear of penalties, fines and a tarnished reputation.

The TCPA protects consumers’ rights to privacy. Without having rules like express written consent in place, consumers would be bombarded with unsolicited phone calls and text messages.

Businesses that fail to obtain express written consent and comply with the TCPA can incur hefty fines ranging from $500 to $1,500 per phone call or text message. There is no cap on total damages. Non-compliant businesses can also expect to face demanding class-action lawsuits that can last up to several years.

For businesses that take on the responsibility with a text message marketing service, not obtaining express written consent from consumers is considered a violation of the SMS provider’s terms of service. Failure to follow protocol can result in the termination of SMS marketing services.

Ultimately, adhering to express written consent is crucial not just because it’s the law, but because it establishes trust with your customers. If you break a customer’s trust, you’ll likely lose their business forever.

How To Acquire Express Written Consent

Obtaining express written consent is your responsibility. You’ll need to provide customers with a method to opt-in to your text campaign.

An “opt-in” is an action a consumer takes to enroll in your SMS program.

For information, here are three ways to get express written consent from customers: 

Text a Keyword Shortcode

Sending a shortcode is the fastest and easiest way to establish consent and opt-in. Customers can text a specific keyword to subscribe to a business’ SMS marketing campaign (for example, text the word ‘START’ to 12345).

Whenever you advertise your keyword, you also need to follow up with an opt-in message. Your message must include:

  • The intended purpose of your campaign
  • Message frequency
  • Message and data rates
  • Link to your terms and conditions
  • Link to your privacy policy

Don’t forget to include ‘STOP’ and ‘HELP’ instructions for users to opt-out or learn more.

Look at this sample format for an opt-in text message:

[Company name], coupon/value proposition or campaign, message frequency, ‘Msg & Data rates may apply,’ option to ask for help or opt-out

Online Web Forms

Customers can fill out a form online to sign up for your SMS marketing list and authorize their consent.

Clearly state that the customer is agreeing to opt-in to your SMS marketing database when they provide their phone number to your business.

Here’s some sample language for express written consent via web forms:

By pressing “[Name of Button, i.e., ‘Submit’],” I agree to receive recurring messages from [Company Name] to the provided mobile number and also agree to the [Company Name] terms and privacy policy at [link]. Message & data rates may apply. Reply STOP to cancel. Reply HELP for info.

Paper Forms

Paper forms are outdated, but they work the same as online web forms. In this scenario, a customer can complete a form in writing to sign up for your SMS marketing database and offer their consent.

You still need to include the same disclaimers on your paper form so customers know that they are agreeing to receive SMS marketing messages from your business.

Important: If you’re going to use an online form or paper form, it’s best to implement a double opt-in.

What Is a Double Opt-In?

A double opt-in occurs when a business requires consumers to provide a second level of consent after joining an SMS marketing list through a paper or online web form. Typically, a double opt-in message asks consumers to reply ‘YES’ via text to confirm they want to receive text marketing messages.

Requiring a double opt-in is a good way to confirm your subscribers were aware they signed up for SMS updates when they filled out your form. Since your subscriber did not initiate communication by texting a shortcode, a double opt-in will give you peace of mind that they truly wanted to join your list.

Always Ensure You Are Practicing SMS Compliance

Acquiring express written consent should be a top focus for any business interested in SMS marketing. Cutting corners or overlooking these requirements isn’t worth the risk of fines and lawsuits.

Work closely with your legal team who will work on your behalf to maintain total compliance for your text marketing campaigns, focusing on CTIA and mobile carrier compliance in order to give you real peace of mind.

SMS platforms like Textedly provide you with multiple pricing plans and options that will work best for your business or organization. You can choose a month-to-month subscription plan, or you can choose an annual subscription plan and only pay one time for the entire year.

Keep reading for more SMS compliance tips to set up your text marketing campaign soon.

Disclaimer: Please note that this is not legal advice and is for informational purposes only. It is not intended to substitute for advice from qualifed legal counsel, nor is it to assist you or help you be compliant as you assume 100% responsibility in all legal matters.

NEXT CHAPTER

Opt-In Text Messaging