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Let’s say that you’re an organization pursuing a text message marketing campaign. You’ve followed Telephone Consumer Protection Act (TCPA) regulations, you’ve checked your process, and everything is secure. You’ve even started securing consumer consent and phone numbers, and are sending out the first waves of messaging. That’s great! What happens if your business wants to sell the list of numbers, or is acquired, or goes out of business? Who owns a consumer’s TCPA consent?
Who Owns a Consumer’s TCPA Consent?
That’s a hard question to answer, as consent isn’t truly “owned” by anyone other than the consumer. But the validity of the consent can change drastically as a result of specific actions. The better question to ask is: “What actions will require a brand to acquire fresh consent from consumers?”
This is an interesting and important question for anyone considering text message marketing, because it directly impacts consumer privacy, and is therefore very much protected by the TCPA and the Federal Communications Commission (FCC). So what happens to the consent of those consumers, and what are the legal implications under the TCPA?
The answer is somewhat nuanced, but it comes down to the context of the initial consent Terms of Service. Normally, there is a Terms of Service section that describes the types of messaging that the consumer might receive, which would dictate what the consumer actually consented to. Determining the terms of the original agreement is the necessary first step.
Is TCPA Consent Transferable?
If a brand is sold, and someone else takes over, then the consent may or may not transfer over and remain valid. On some occasions, it might be perfectly appropriate for the consent (and therefore the messaging) to carry on as if nothing changed. These occasions are generally when there is functionally no change in the brand name, content, or product. Behind-the-scenes corporate restructuring does not force the brand to acquire fresh consent.
However, if the brand name, product, or messaging changes in any significant way, then consent needs to be reacquired. In these cases, the terms of the agreement have changed, because one of the parties involved has significantly changed, thus making any previously acquired consent null and void. If any aspect of the advertised service changes, then new consent is needed.
The laws around TCPA compliance and consent continue to evolve, so the answers and interpretations regarding reasonable consent may change or adapt with time. But no matter how things develop, it’s wise to analyze the initial terms of the consenting agreement. There’s a significant chance that changes in the law will require brands to ask consumers for consent again in the future, so keep yourself aware of any incoming changes to the TCPA. (P.S. You can do that by downloading our free TCPA Survival Guide.)
If you’re part of the company buying out a brand, you cannot assume that the brand has been TCPA compliant. Always audit any new acquisition’s text message marketing campaigns to make sure that everything is regulation-compliant; the consequences of not doing so can be costly. It might not be a bad idea to ask for fresh consent, just to be safe.
Staying Up-to-Date on TCPA Compliance
We hope our breakdown of consumer consent with regard to ownership and application was helpful to you! If you’re curious about text message marketing or want to learn more about the TCPA, we encourage you to contact our SMS marketing experts here.