Disclaimer: The materials available at this website are for informational purposes only and not for the purposes of providing legal advice. You should consult with your legal counsel regarding compliance with all applicable federal and state laws, including, but not limited to, the TCPA.
As set forth in Emotive’s Terms of Service and other agreements, compliance with laws applicable to use of your current and prospective customers’ information is an important responsibility and, as the entity who collects that information, it is your responsibility to ensure that these individuals provide any required consent to such use prior to their information being transmitted to Emotive.
One of the laws applicable to use of individuals’ cellular telephone numbers is the Telephone Consumer Protection Act (the “TCPA”). Among other things, the TCPA requires that individuals provide prior express consent to receive most text messages or calls to their cellular telephone numbers. Attached is a short summary of the TCPA’s requirements and suggestions regarding how to comply.
While this summary does not take the place of consulting with an attorney experienced with the TCPA – something we encourage you to do – it provides useful guidance regarding TCPA compliance. We encourage you to read it and to implement any best practices that you might not currently employ.
Part 1: TCPA Compliance Overview
What is the TCPA?
The Telephone Consumer Protection Act (“TCPA”), enacted by Congress in 1991, is a federal statute governing telecommunications. The TCPA prohibits any person or entity from making any call using an automatic telephone dialing system or an artificial or prerecorded voice to a cellular telephone number without the prior express consent of the called party. Text messages are usually treated the same way as calls under the TCPA, and they are subject to the same legal requirements.
Further, it is established that “prior express consent” almost always means prior express written consent. In sum, the TCPA requires individuals, businesses, and organizations to obtain express written consent from individuals prior to sending any SMS or MMS text messages to them for marketing purposes. As stated in our Terms of Service https://emotive.io/terms, all customers have a legal obligation to comply with all applicable federal and state laws regarding communications with third parties, including compliance with the TCPA.
What is express consent?
In the context of the TCPA, express consent is express written consent. Express written consent is permission given by someone either on paper or electronically. It includes consent in a digital agreement, on a website form, or in another appropriate writing. In certain circumstances, it may also include consent obtained in a recorded verbal agreement, or by selecting a specific telephone key when prompted. Even if a person has given your business their telephone number, you still need to obtain their express written consent before sending them a text message.
Why does this matter?
If you do not comply with the TCPA, you may be subject to legal action. The TCPA provides for a private cause of action by an individual, on behalf of themselves and/or on behalf of a class, to recover damages. Violations of the TCPA can lead to significant financial consequences: damages range from a minimum of $500 per text and up to $1,500 per text sent in violation of the TCPA. If you are unsure whether any telephone numbers on your contact list meet the TCPA’s requirements for prior express consent, we advise you to consult your organization’s compliance team and/or legal counsel. Further, you should not upload any contact information to Emotive unless and until you have verified that proper prior express consent has been obtained.
What are best practices to obtain express written consent? Best practices to consider when drafting your express consent language include:What kind of language should I use to obtain express consent from my customers?
- The written consent should be clear and conspicuous so the recipient is well aware that they are consenting to receipt of text messages. As one example, do not bury your express consent language deep in your terms and conditions.
- The individual providing consent should be required to provide affirmative acceptance of the specific consent provision, in addition to any general acceptance of the terms and conditions of use of your company’s website or product.
- The consent should specifically authorize telemarketing text messages sent using an automatic telephone dialing system.
- The consent should contain a representation that the person who is entering the phone number has authority to provide this number for the purpose of receiving text messages. Remember that phone numbers can easily be reassigned from someone who gave consent to someone who did not give consent, at any time. You may consider asking your contacts to reaffirm consent periodically. If they refuse consent or do not respond, then consider removing them from your contact list. If they refuse consent and/or you remove them from your contact list, you must notify Emotive as soon as possible and not later than 24 hours thereafter so we can remove the phone number from our system.
- The consent should clearly state that the individual may revoke his or her consent at any time and also provide an “opt-out” mechanism for individuals who do not want to receive further communications. Revocation, unlike prior express consent, does not need to be in writing. If you receive a revocation of consent, in any form, you must notify Emotive as soon as possible and not later than 24 hours thereafter so that we can remove that phone number from our system.
- You should maintain a copy of each consent you receive.
- You also should also maintain an internal “do not call” list for individuals who have requested not to be contacted.
- Consent to receive text messages should not be a condition of purchase.
- Finally, check the National Do Not Call registry frequently. Under the TCPA, you are not allowed to contact any numbers on the Do Not Call registry, regardless of method, unless the individual has given express written consent. It is important to cross-check your own contact list with the Do Not Call registry and remove the contacts you do not have consent from and reaffirm consent with any contact who appears on the list that you do have consent from.
What kind of language should I use to obtain express consent from my customers?
Here is an example of language you may consider using to obtain customers’ express written consent to receive text messages. This is only an example, and should not be relied upon as legal advice. You should consult your legal counsel regarding your company’s specific compliance requirements and considerations to ensure that you are following all applicable federal and state laws, including the TCPA.
“I agree to receive recurring telephone calls and/or SMS or MMS text messages for marketing purposes at the phone number provided, including but not limited to calls or texts sent using an automatic telephone dialing system or an artificial or prerecorded voice. I am authorized to consent to receive text messages sent to the phone number provided. I understand that I may revoke consent at any time. I understand that consent is not a condition of purchase. Message and data rates may apply. View our Terms of Service for details.”
Part 2: Receiving consent at checkout
Consumers have to provide “express written consent” before they can receive marketing communications via SMS. This article covers the three steps you need to take in order to receive full consent from the customer at the time of checkout. They are:
- Request that the customer sign up for marketing updates
- Explain that the customer will be receiving text messages from you in a TCPA-compliant manner, meaning that they acknowledge and agree: (a) to receive automated, recurring marketing messages to the consumer’s mobile phone number; (b) which may involve the use of an automatic telephone dialing system (“ATDS”), and (c) that consenting to receive such messages is not a condition of purchase
- Request that the customer provide their phone number in order to receive the text messages
Update the marketing sign-up language to specify that you will send text messages. Go to Settings > Checkout and scroll down to the Checkout language section. Press the Manage checkout language button.
Search for “Checkout Marketing”. In the field called Accept marketing checkbox label, paste the following:
“I agree to receive recurring automated text messages at the phone number provided. Consent is not a condition to purchase. Msg & data rates may apply. View our Terms of Service for details.”
Save the changes by clicking the Save button at the top of that page.
Next, set up a field to collect the customer’s phone number. Go to Settings > Checkout and find the Form options section. Change the Shipping address phone number to Optional. Then, save the changes by clicking the Save button at the top of that page.
We recommend leaving the checkbox on checkout “unchecked” by default, requiring customers to provide affirmative consent to opt in.
Now add a SMS-specific label to the phone field (to further confirm consent).
Go to Settings > Checkout and scroll down to the Checkout language section. Press the Manage checkout language button.
Search for “Optional phone label”. In the fields called Option phone label and Optional phone placeholder, paste the following:
Phone - exclusive offers (per checkbox above)
Then save the changes by clicking the Save button at the top of that page.
Here is an example of how a checkout looks after all of these steps are taken:
Part 3: Opt Out
Under the TCPA, you must ensure that you remove customers from your text messaging marketing campaign if they make a “reasonable” request asking to be removed. This is commonly referred to as the “opt-out” process.
Emotive provides functionality so that your SMS subscribers are able to opt out of SMS marketing messages at any time by replying “STOP” to any message you have sent. In order to communicate this information to the customer, your first message to each customer must include opt-out language (“Reply STOP to unsubscribe”).
We recommend including opt out (“Reply STOP to unsubscribe”) language in all messages to customers (including all broadcast, campaigns, sequences, opt in methods, keywords, etc).