Heightened SMS Consent Requirements Take Effect October 16, 2013

Published On August 15, 2013 | By Mason Weisz | General, Privacy
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Texting on a qwerty keypad phone

Texting on a qwerty keypad phone (Photo credit: Wikipedia)

Only two months remain before the Federal Communications Commission’s updated consent requirements for marketing-related text messages take effect.  Violations will give rise to liability for statutory damages of $500-$1,500 per message, depending on the extent to which the defendant willfully or knowingly violated the requirement.

Under existing FCC rules, companies cannot use an “automatic telephone dialing system” to send non-emergency text messages without the recipient’s prior express consent.  Courts have construed the term “automatic telephone dialing system” in such a broad manner that it includes most systems commonly used to send multiple text messages.

Under a revision to the rules that takes effect on October 16, 2013, companies need “prior express written consent” (emphasis added) to use such equipment to send a text message that introduces an “advertisement” or constitutes “telemarketing.”  The sweeping definitions of these terms encompass virtually all text messages that have any tie to marketing:

  • “Advertisement” means “any material advertising the commercial availability or quality of any property, goods, or services.”
  • “Telemarketing” is “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.”

Effective October 16, companies will no longer be able to send these messages, even to individuals who previously consented to receive them, unless the consent meets the new requirements for “prior express written consent,” which are summarized below:

  • There must be a written agreement, bearing the “signature” of the recipient, that clearly authorizes the seller to send the messages using automated equipment.
  • The agreement must specify the telephone number to which the authorization applies.
  • The agreement must include a “clear and conspicuous disclosure” that, (i) by executing the agreement, the person authorizes the seller to send the messages, and (ii) 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” includes electronic or digital signatures, to the extent they are recognized as valid signatures under applicable federal law or state contract law.  This gives senders flexibility to capture consent through a variety of means, including properly constructed click-through agreements.

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About The Author

Mason helps clients navigate a constantly shifting web of domestic and international laws regulating data collection, marketing, data sharing, computer crime, data security, electronic surveillance, online content, children’s privacy, financial privacy, information management, and other areas of privacy and Internet law. A former web designer, he has extensive experience with issues relating to digital media, new technology and e-commerce.

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