What You Need to Include in a Disclosure to Obtain Legal Express Consent

Summary

To obtain legal express consent to contact consumers by telephone, we have provided a checklist. This checklist will help you comply with the new FCC regulations that went into effect on October 16th.

Article

With the new FCC regulations that went into effect on October 16th, you likely have already reviewed the forms you use to obtain express consent to contact consumers by telephone.  If you haven’t, this article will set forth the elements you need to include in a disclosure to obtain legal express consent to text or call, and if you have, the following should provide a checklist review.

There are four sources of law that govern what you need to include in a disclosure to obtain the consumer’s express consent for marketing contact.  The first three are federal laws and regulations and the fourth is state law (grouped below into one “source” as it largely duplicates the federal requirements).

Telephone Consumer Protection Act

The Telephone Consumer Protection Act (TCPA) regulations define “prior express written consent” as:

an agreement, in writing, bearing the signatureof the person called that clearly authorizes the seller to deliver or cause to be delivered to the person called advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice, and the telephone number to which the signatory authorizes such telemarketing messages to be delivered.

(i) The written agreement shall include a clear and conspicuous disclosure informing the person signing that:

(A) By executing the agreement, such person authorizes the seller to deliver or cause to be delivered to the signatory telemarketing calls using an automatic telephone dialing system or an artificial or prerecorded voice; and

(B) 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.

(ii) The term “signature” shall include an electronic or digital form of signature, to the extent that such form of signature is recognized as a valid signature under applicable federal law or state contract law.

Id. at 47 CFR § 64.1200(f)(8) (emphasis added). In one sentence, the disclosure must clearly and conspicuously state that the consumer agrees to receive marketing calls via a dialer or prerecorded voice and that the disclosure is not given as a condition to purchase any goods or services. This restriction applies to SMS messages as well as live or prerecorded telephone calls.

The electronic signature language means that this consent can be obtained in writing, via the internet, or even on the telephone with a properly worded script.

Telemarketing Sales Rule

Similarly, the Telemarketing Sales Rule (TSR) defines express consent as:

Such written agreement shall clearly evidence such person’s authorization that calls made by or on behalf of a specific party may be placed to that person, and shall include the telephone number to which the calls may be placed and the signature of that person; …
___________________________________

For purposes of this Rule, the term “signature” shall include an electronic or digital form of signature, to the extent that such form of signature is recognized as a valid signature under applicable federal law or state contract law.

16 C.F.R. § 310.4(b)(1)(iii)(B)(i).

The TSR disclosure contains fewer elements than the TCPA.

CAN-SPAM

CAN-SPAM, 47 C.F.R. § 64.3100, applies to messages sent Internet-to-phone, when the format of the address used to send the message includes an Internet domain name.  These messages are called “mobile service commercial messages” (MSCMs).

CAN-SPAM prohibits messaging without express prior authorization.  All requests for express prior authorization must include the following disclosures:

(i) That the subscriber is agreeing to receive mobile service commercial messages sent to his/her wireless device from a particular sender. The disclosure must state clearly the identity of the business, individual, or other entity that will be sending the messages;

(ii) That the subscriber may be charged by his/her wireless service provider in connection with receipt of such messages; and

(iii) That the subscriber may revoke his/her authorization to receive MSCMs at any time.

Id. at (d)(5) (emphasis added).

State Law

If your consent complies with the above federal elements, it should comply with nearly every state “do-not-call” law or cell phone restriction requiring express consent to contact a consumer. Your attorney should be able to detail the exceptions, but no more than a couple of states have slightly differing rules.

Although there are a handful of items that you need to include depending on the media you wish to use for marketing contact, the document, as a whole, need be no longer than a few sentences as the statutes do not require specific language and allow businesses to use their best business judgment regarding the actual form of the consent.