The fundamental issue underpinning consumer privacy protection and telemarketing/text message marketing activity is that of consumer consent – and the extent to which a prospective marketer has secured such consent. Without obtaining the proper consent, as required under various statutes, such as the Telephone Consumer Protection Act (the "TCPA") and the Telemarketing Sales Rule (the "TSR"), certain telemarketing activity will be illegal and may subject the marketer to exorbitant fines and other significant liability.
Consumer Consent in the TCPA Era
Under the TCPA, the "Established Business Relationship" exception no longer relieves marketers of the need to obtain separate, standalone "prior express written consent" – at least when making telemarketing calls or delivering text messages to mobile telephones using an autodialer or pre-recorded messages. Further, a recent declaratory ruling from the Federal Communications Commission (the "FCC") reiterated that text messages are "telephone calls" within the meaning of the TCPA, and established such an expansive definition of "autodialer" that almost all forms of telemarketing would be considered conducted via an autodialer.
Given that almost all telemarketing activities (and literally all text message marketing) will involve at least some mobile telephones, obtaining "prior express written consent" in the TCPA era is a must. There are two primary vehicles for obtaining consumer consent for telemarketing purposes: the "Submit button" language and the Privacy Policy.1 Consent can also be obtained in an actual written and signed document, as well as over the phone under certain circumstances.
"Submit Button" Language
Whether obtaining consent via an online form, a signed written document or over the phone, for consumer consent to be considered valid under the TCPA, it must be unambiguous, meaning that the consumer must receive a "clear and conspicuous disclosure" that: (1) he or she will receive future calls/texts that deliver autodialed and/or pre-recorded telemarketing messages on behalf of a specific advertiser; (2) his or her consent is not a condition of purchase; and (3) he or she must designate a phone number at which to be reached.
Below is an example of "Submit button" language that would satisfy the TCPA's standard for obtaining consent.
|
Sample Website Consent Language |
I hereby consent to receive autodialed and/or pre-recorded telemarketing calls, as well as SMS text messages, from or on behalf of [ADVERTISER] at the telephone number provided above.2 I understand that consent is not a condition of purchase. |
Privacy Policies
In addition to obtaining consumer consent via an online form, a signed written document or over the phone, advertisers must ensure that their Privacy Policies contain adequate disclosures regarding telemarketing activities, including an easy means to opt-out of receiving telemarketing calls in the future.
Below are examples of Privacy Policy provisions addressing TCPA and TSR-related disclosures:
| By submitting
your personal information to [ADVERTISER], you
agree that such act constitutes an inquiry and/or application for
purposes of the Amended Telemarketing Sales Rule (16 C.F.R. §
310 et seq.), as amended from time to time (the "Rule")
and applicable state do-not-call regulations. As such,
notwithstanding that your telephone number may be listed on the
Federal Trade Commission's Do-Not-Call List, and/or on
applicable state do-not-call lists, we retain the right to contact
you via telemarketing in accordance with the Rule and applicable
state do-not-call regulations. Where you provide "express written consent" within the meaning of the Telephone Consumer Protection Act (47 U.S.C. § 227), and its implementing regulations adopted by the Federal Communications Commission (47 C.F.R. § 64.1200), as amended from time-to-time ("TCPA"), you consent to receive telephone calls, including artificial voice calls, pre-recorded messages and/or calls (including SMS text messages) delivered via automated technology, to the telephone number(s) that you provided. Please note that you are not required to provide this consent in order to purchase [ADVERTISER'S] products and/or services, and your consent simply allows [ADVERTISER] to contact you via these means. Please be advised that by agreeing to this Privacy Policy, you are obligated to immediately inform us if and when the telephone number associated with your mobile device(s) has/have changed. |
Penalties/Fines
The TCPA alone provides for either actual damages or statutory damages ranging from $500 to $1,500 per non-compliant telephone call/text message. Considering that text message marketing campaigns often involve thousands – or in some cases, millions – of text messages, potential damages under the TCPA may escalate especially quickly for SMS marketers. Traditional telemarketing campaigns also involve a high volume of calls and, thus, expose the marketer to considerable liability. Accordingly, it is recommended that telemarketers retain qualified legal counsel to ensure that they obtain and maintain adequate consumer consent in connection with their telemarketing activities.
Footnotes
1. IMPORTANT NOTE: Compliance language in the Privacy Policy alone is not sufficient.
2. The checkbox and phone number should not be pre-populated, and the consumer's phone number should appear on the same page as the consent.
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