DISCLAIMER: The information provided below is not legal advice and is for general informational purposes only. You must obtain advice from a legal council on SMS Compliance for TCPA and CTIA as you assume all responsibility for all legal matters.
Businesses need express written consent to send text messages to consumers because it is required by the Telephone Consumer Protection Act (TCPA), which is a federal law that regulates telemarketing calls and text messages. The TCPA defines text messages as "calls" and requires businesses to obtain prior express written consent from the consumer before sending any automated text messages for telemarketing purposes.
Express written consent means that the consumer must give clear and unambiguous permission for the business to send text messages to their phone number. This consent must be in writing, which can be provided electronically, and must include specific disclosures such as the number of messages that will be sent, the type of messages, and the frequency of messages. The consumer must also be informed that they can revoke their consent at any time.
Obtaining express written consent is important for businesses to avoid potential legal action and penalties for violating the TCPA. Consumers have the right to sue businesses that send unsolicited text messages or fail to obtain proper consent, and penalties for each violation can range from $500 to $1,500 per message. Therefore, businesses should make sure they have proper consent before sending any text messages to consumers.
An express written consent is an agreement from the consumer receiving a text message or a phone call for marketing communications. "Written" doesn't necessarily mean that it has to be handwritten. It can actually be a handwritten agreement but it can also be a digital agreement. The penalty for violating the Telephone Consumer Protection Act is up to $500 per each unwanted text message or up to $1,500 per violation for knowing or willful violations.
The TCPA (Telephone Consumer Protection Act of 1991), a federal law established by the FCC (Federal Communications Commission) states that:
(1) to obtain prior express written consent from consumers before robocalling them
(2) to no longer allow telemarketers to use an "established business relationship" to avoid getting consent from consumers when their home phones
(3) to require telemarketers to provide an automated, interactive "opt-out" mechanism during each robocall so consumers can immediately tell the telemarketer to stop calling
(4) The term “telephone solicitation” means 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, but such term does not include a call or message (A) to any person with that person's prior express invitation or permission, (B) to any person with whom the caller has an established business relationship, or (C) by a tax exempt nonprofit organization.
(5) The term “unsolicited advertisement” means any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission, in writing or otherwise.
Section 15 (Legal Compliance for SMS Text Messaging) in our Terms of Service states "You acknowledge and warrant that you are aware that the TCPA (Telephone Consumer Protection Act of 1991) federal law requires that you legally obtain explicit written consent from a consumer before you can send them marketing text messages using an autodialer, with no purchase required as a condition of their consent, and such consent must be clearly outlined in writing and that you assume all responsibility for all legal matters."