TCPA Now Requires Written Consent in SMS Marketing

The Telephone Consumer Protection (TCPA) was passed into law 47 U.S.C. 227 in 1991 by the United States Congress. This law protects consumers from unsolicited advertisements using automatic dialing systems, which include voice, fax, and text messages.

When the law was passed, businesses were only allowed to send text messages to consumers who had given them “prior express written consent.” Yet, 68 percent of consumers still reported receiving text message spam, even with the protection of the TCPA. Why?

A loophole in the TCPA allowed businesses to send text messages to consumers, provided they could prove an “established business relationship” existed with those consumers. Unfortunately, an “established business relationship” was poorly defined and extremely vague, which left the door wide open for a great deal of text message spam.

On February 15, 2012, the Federal Communications Commission (FCC) amended the TCPA, removing this exception and making it mandatory for businesses to receive consumers’ “prior express written consent” before sending them any marketing text messages.

The term “prior express written consent” is defined as a written agreement bearing the recipient’s signature. This agreement must clearly authorize the business to deliver advertisements or telemarketing messages using an automatic telephone dialing system. This written agreement should include a clear and conspicuous statement informing the consumer of two things:

  • By agreeing, the consumer authorizes the business to send text messages to their mobile phone.
  • The consumer isn’t required to sign the agreement (directly or indirectly) or enter into the agreement as a condition of purchasing any property, goods, or services.
  • The term “signature” can include an electronic or digital form of signature, to the extent that such form of signature is recognized as a valid signature under applicable federal law or state contract law. This would include a mobile opt-in in the case of SMS marketing.

While this amendment to the TCPA has significantly reduced text message marketing spam from marketers, it still allows text messages sent from nonprofit organizations and political groups and candidates and messages sent for noncommercial purposes such as announcing school closings, as long as there’s an “established business relationship.”

If you’re curious and want to learn more about SMS marketing, you can explore our SMS marketing resources or contact us directly. If this article prompted some ideas, please share them with us in the comments below.


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