TCPA Amendment Now Requiring “Written Consent” for 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 most importantly text messages.

When the law was originally passed, businesses were only allowed to text message you if they received your “prior express written consent”. So why do 68% of consumers still report receiving text message spam, even with the protection of the TCPA? In the law, there was a gaping loophole for businesses that allowed them to send text messages to you, so long as they could prove there was an “established business relationship”. The problem with this loophole was that the definition of an “established business relationship” was left extremely vague, and when you take into account how many businesses you interact with on a daily basis, it hasn’t done much to stop the onslaught of annoying text message spam.

On February 15, 2012 the Federal Communications Commission (FCC) amended the TCPA and removed this exception, making it mandatory for businesses to receive “prior express written consent” before sending you any text messages. Woohoo! Finally a stop to text message spam!

Just to clarify, the term “prior express written consent” means an agreement, in writing, bearing the signature of the person receiving the text messages, that clearly authorizes the business to deliver or cause to be delivered to the person called advertisements or telemarketing messages using an automatic telephone dialing system.

A few more specifics about “prior express written consent” and how it’s obtained.

  • The written agreement shall include a clear and conspicuous disclosure informing the person signing that: (A) By executing the agreement, such person authorizes the business to send text messages to their mobile phone; and (B) The person is not required to sign the agreement (directly or indirectly), or agree to enter into such an agreement as a condition of purchasing any property, goods, or services.
  • The term “signature” shall 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 new amendment to the TCPA will significantly reduce text message spam from marketers, the amended TCPA still allows text messages from non-profit organizations, political groups/candidates, and for other noncommercial purposes such as school closings, as long as there is an “established business relationship”. As before though, this term is still extremely vague, still leaving consumers open to text message spam.

What do you think? Should non-profits and political groups have to abide by the same rules when it comes to text messaging your mobile phone as businesses do? Let me know your thoughts in the comments below.


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