TCPA Regulations Begin October 16, 2013

“Clear and Conspicuous Disclosure” Now Required for Text Message Opt-Ins

The following information is to be used as a guideline to the new TCPA regulations that begin October 16, 2013.  It is not intended to offer legal advice.  You should always seek your own legal advice when providing text message marketing services.

Beginning October 16, 2013, new laws under the Telephone Consumer Protection Act (TCPA) will be in force.  The TCPA applies to both voice and short message service (SMS) text messages if they are transmitted for marketing purposes.

Under the new TCPA rules, an advertiser must now have unambiguous written consent before sending a text message to the consumer.  The consumer consent must include a “clear and conspicuous disclosure” that he/she will receive future contact via text message.  The advertiser bears the burden of proof to demonstrate that a clear and conspicuous disclosure was provided.  Such written consent should be maintained for at least four years which is the statute of limitations provided by the TCPA.

In the past, businesses were able to send a marketing text message to a consumer if it had a previous “established  business relationship” with the customer.  Under the new TCPA, established business relationship no longer relieves advertisers of the prior unambiguous written consent requirement.  Advertisers need to obtain such written consent even if they previously had a business relationship with the consumer.

There are significant fines for the violation of the TCPA between $500 and $1500 per message for non-compliance. urges all of its mobile marketing customers to read and follow the rules of the TCPA.