Compliance

Express Written Consent for SMS Subscribers

In this guide, we’ll cover key information about what express written consent is, why you need it, and how to appropriately earn consent. Our goal is to ensure your company stays compliant.

Mathew Gorka

By Mathew Gorka

February 22, 2023

9 min read

Express Written Consent for SMS Subscribers

You’ve signed up for SMS marketing software and you’re yearning to unleash its power. You know that, to start text message marketing, you first need a list of contacts. Before beginning your outreach, you want to ensure your company is compliant with TCPA and other text message regulations. Let’s take a deeper look into what express written consent is. After learning more about express written consent we suggest additional readings such as our SMS compliance guide. You may also want to check with the TCPA, FCC, and FTC.

In this guide, we’ll cover key information about what express written consent is, why you need it, and how to appropriately earn consent. Our goal is to ensure your company stays compliant.

  • What Is Express Written Consent?
  • Why is Express Written Consent Necessary?
  • How to Acquire Express Written Consent?

What Is Express Written Consent?

The TCPA defines express written consent as a written agreement, authorized by the consumer receiving the call or text, with a concise and visible disclosure that permits your business to send text message marketing or telemarketing communications.

Simply put, consumers must consent to receive SMS marketing communications or telemarketing calls from your business.

Prior written consent means your company transparently explains the program consumers are signing up for. In a straightforward manner, your company explains what types of messages consumers can expect to receive. Your company must fully disclose the terms and conditions, privacy policy, and the number of text messages consumers will receive (cadence) within your campaign or program.

Note: the term “written” in regards to express written consent, does not inevitably mean handwritten consent. “Written” consent includes several forms of documented permission such as a consenting reply via text message or an online form submission.

Want to read up more on express written consent? The U.S. Federal Communications Commission’s (FCC) Telephone Consumer Protection Act (TCPA) regulates telemarketing and SMS marketing with the goal of protecting consumers from unwanted communications. The FCC is one of the two institutions that creates and sanctions these laws/actions. Click the FCC link to go directly to their site. The more you know about text messaging laws in the United States, Europe, and Canada, the more you can ensure your compliance.

Why Is Express Written Consent Important?

Express written consent is federal law in the United States. Ensuring TCPA regulation compliance will ensure your business steers clear of penalties, fines, a damaged reputation, or even a banishment from SMS marketing communications.

So why do these regulations exist? The TCPAs purpose is to protect consumer privacy. Without regulations like express written consent, consumer inboxes would be overwhelmed with unsolicited text messages and calls.

What happens if businesses don’t comply? Failure to obtain express written consent and comply with the TCPA may lead to significant fines ranging from $500 to $1,500 per phone call or text message. These fines multiply quickly when sending noncompliant bulk messages. To be clear, there is no cap or maximum fine on total damages. The more non-consented messages you send, the higher the fine will be. Non-compliant businesses may also face class-action lawsuits that are costly to defend and long in their duration, leaving a company tied up in litigation for several years.

Adhering to express written consent doesn’t just establish trust with your customers, it’s the law. Breaking customers' trust can damage your reputation, which could also lead to losing those customers’ business forever.

Acquiring Express Written Consent

Your business must provide its customers with a way to opt-in to your text communications. An opt-in is a consenting action a consumer takes to enroll in your SMS program, which explicitly outlines the pertinent information [link] about your campaign.

Obtaining express written consent is your responsibility. It should also be a top priority. It is the most important thing you can do to start your compliant campaign off on the right foot. For context, we’ve provided three tried and true ways to get express written consent from customers:

Use a QR Code

Using a QR code is an effective and innovative way to gain a consenting opt-in. What’s a QR code? QR codes are a machine-readable code consisting of an array of black and white squares typically used for storing URLS or other information for reading by a smartphone camera. If you’re interested in obtaining one, there are websites that generate trusted and reliable QR codes, like www.flowcode.com. If you want to add color or a little flair to your QR code, check out www.qr.io.

Your QR code can lead to an intake form or an opt-in link on your site. Feel free to get creative with the landing page, but make sure the intent to opt-in by the customer is clear and that your message is not misleading.

If your QR code leads to an opt-in make sure it includes:

  • The purpose or theme of your campaign
  • Message rates/data rates that may apply to participating in the campaign
  • Messaging cadence, which is the frequency of your communications
  • A clear and direct link to your business’ terms and conditions and privacy policy
  • Make sure to include ‘STOP’ and ‘HELP’ instructions for users to opt-out or learn more

Online Forms

Online forms enable customers to fill out and sign up for your SMS marketing list by authorizing their consent. To start, clearly state that the customer is agreeing to opt-in to your SMS marketing database. The customer should know how you plan to use their number when they provide it to your business. You should also include a statement about the ways in which you’ll protect their info and make them aware that they can opt-out at any point.

Paper Forms

Paper forms are the least digital option but they still get the job done. Think of paper forms as a physical version of your online form. Customers and prospective clients can complete the form in writing to sign up for your SMS marketing database and offer their consent. Physical forms are good for businesses that see lots of walk-in traffic like salons, fitness studios, pet stores, etc.

Continuity is key. Make sure to include the same disclaimers on your paper form that you do/would on an online form. Customers need to explicitly know that they are agreeing to receive SMS marketing messages from your business. We recommend a double opt-in, especially for paper form submissions.

Double Opt-In

A double opt-in is a second level of authorization, which occurs after a customer consents to text message marketing via your business’ online or paper form. A double opt-in message asks customers to reply ‘YES’ (or another keyword via text) that confirms they authorize receiving text marketing messages from your business.

Establishing a double opt-in confirms that your subscribers were aware they signed up for SMS updates when they filled out your form. Since the subscriber did not initiate communication by texting a shortcode, a double opt-in will confirm that they truly intended to receive your messages.

Always Ensure You Are Practicing SMS Compliance

Express written consent should be a top priority for your business. It is a critical first step for your business. Failure to do so will expose your business to fines, lawsuits, and other damaging repercussions. If you have any questions or concerns we recommend reaching out to legal professionals for guidance. Additionally, we suggest continued reading regarding mobile carrier compliance to ensure your business is fully compliant.

Disclaimer: Please note that this is not legal advice and is for informational purposes only. Your company and associates assume full responsibility in all legal matters.

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