SMS Compliance Guide

Understanding Express Written Consent

Chapters: 12345678

You may be thinking, what’s “express consent” and how is that different from plain ole “consent”? Well, when you sign up for a service (e.g., Gmail) and you agree to the user agreement, you consent to a bunch of language you probably didn’t read. But that type of consent isn’t good enough here—you can’t bury consent to text message someone in a privacy policy or user agreement.

You must provide clear and conspicuous disclosure of what the user is consenting to, and who they’re consenting to get it from. No hide-the-ball tactics allowed here.

Express Written Consent Definition

According to the U.S. Federal Communications Commission (FCC), express written consent, as defined in the Telephone Consumer Protection Act (TCPA) and the FCC’s implementing regulations, is permission given by someone on paper or electronically to receive marketing messages sent using an autodialer. In addition to agreeing to receive those autodialed messages, they should acknowledge that they understand that they don’t have to agree to receive them as a condition of any transaction with you.

“Wait, wait — SimpleTexting is an autodialer, you say??” Well, no, not really. In our opinion, there’s far too much human involvement that you put into building and managing your campaigns; further our platform doesn’t generate any numbers to be dialed or called. However, Congress defined autodialer way back in 1991, before SMS platforms like SimpleTexting existed, and courts are struggling with how to apply Congress’s old definition to new technology. So the safest practice is to assume any modern calling technology is an autodialer and to comply with the TCPA’s autodialer rules, since if you do, you’ll both be complying with the law (regardless of how a court interprets it), and giving consumers clear expectations about what to expect in the process.

Also worth noting is that “written” doesn’t actually have to mean written by hand. A digital agreement is sufficient. The FCC definition includes express written consent given on website forms, in a recorded verbal agreement, or by selecting a specific telephone key when prompted (assuming the call in which that keystroke is given was legal in the first place, such an inbound call the consumer made to you).

Your main takeaway here is that express consent is not implied or assumed. Just because someone has given your business their cell phone number doesn’t mean they have agreed to receive texts from you. Until they have given you written proof signifying their agreement to receive texts in an opt-in with the required terms, you’re risking a violation. If you’re importing contacts, always double check you have consent before uploading. And hang onto those consents, because it is the sender’s duty in a TCPA case to prove that they sent a text with the consumer’s prior express consent.

Luckily, getting consent isn’t difficult. Jump ahead to our section about opt-in methods to find out how simple the process can be.

Why Does Express Consent Matter So Much?

It may seem small or insignificant, but texting people without their consent is against the law, point blank. And companies have been burnt by it before. Heavy fines or lawsuit settlements are potentially in your future, and annoyed customers almost a certainty. As tempting as it is, it’s never worth it to take the shortcut.

We want to make sure you feel adequately prepared to manage matters of express consent because, as a text marketer, you’re responsible for it.

Per our terms of service the individual/account/user responsible for sending messages via a SimpleTexting account is ultimately responsible for ensuring that express consent has been obtained (and, ideally, documented for verification purposes in the event of a compliance audit or formal complaint).

We have a zero tolerance policy for illegality here at SimpleTexting, and consent violations at the very least can result in account termination.

With all of that being said, we don’t want to scare you off! But rather than burying the facts within a terms and agreements page, we want to be upfront with all of our customers about the responsibilities that come with the platform.

In the end, we find that express consent ultimately comes as an advantage because it weeds out your passive audience leaving you with only your most active and interested supporters. This means your messages are more likely to go to people likely to take action. The result—impressive and significant ROI.

Now that you’ve got a firm grasp on express written consent, let’s talk about methods for acquiring it.

💡 Key Takeaways:

  • You cannot send text marketing messages just because someones given you their number—you must first obtain express written consent.
  • Buying lists of contacts and texting them is expressly forbidden.
  • Texting without consent is against the law.
  • As the text marketer it is your responsibility to secure consent.

Disclaimer: Please note that this advice is for informational purposes only and is neither intended as nor should be substituted for consultation with appropriate legal counsel and/or your organization’s regulatory compliance team.


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