What is the Telephone Consumer Protection Act (TCPA)?
The Telephone Consumer Protection Act (TCPA) is a U.S. federal law enacted in 1991 to protect consumers from unsolicited telemarketing calls, robocalls, and spam messages. It establishes strict regulations on how businesses and organizations can contact individuals via phone, text, or fax. Key provisions of the TCPA include requiring prior express consent for telemarketing calls, restricting the use of autodialers and prerecorded messages, and creating the National Do Not Call Registry, which allows consumers to opt out of unsolicited marketing communications. The Federal Communications Commission (FCC) and the Federal Trade Commission (FTC) oversee enforcement, and businesses that violate TCPA regulations may face hefty fines and lawsuits.
What are the requirements for TCPA compliance?
TCPA compliant means adhering to the Telephone Consumer Protection Act (TCPA), which regulates telemarketing calls, texts, and prerecorded messages. Compliance involves obtaining prior express written consent from consumers before contacting them, maintaining a do-not-call list, and honoring opt-out requests. Violations can result in fines and penalties.
For SMS, being TCPA compliant means following strict rules when sending marketing or promotional text messages. This includes:
- Obtaining explicit consent: You must get clear, written consent from recipients before sending SMS marketing messages.
- Opt-in/Opt-out procedures: Ensure recipients can easily opt-in to receive texts and opt-out at any time (such as through "STOP" replies).
- Message disclosures: Clearly disclose the nature of the messages, frequency, and any charges that may apply.
- No unsolicited messages: You can't send unsolicited messages to numbers on the Do Not Call list or those that haven’t opted in.
- Record keeping: Maintain proper records of consent for audit purposes.
Non-compliance can lead to fines and penalties under the TCPA.
What are the new TCPA regulations that took effect in January 2025?
Before this rule, a practice known as the "lead generator loophole" allowed businesses to use a single consent from a consumer to reach out on behalf of multiple sellers. This often led to consumers receiving an overwhelming number of unsolicited marketing messages from various companies, diminishing the effectiveness of consent and infringing on consumer privacy.
The Federal Communications Commission (FCC) recognized this issue and introduced the One-to-One Consent Rule to ensure that consumers have more control over who can contact them. By requiring written consent for each specific seller, this rule enhances consumer autonomy and transparency in marketing communications.
Amended Definition of “prior express written consent”
47 CFR 64.1200(f)(9)
The term prior express written consent means an agreement, in writing, that bears the signature of the person called or texted that clearly and conspicuously authorizes no more than one identified seller to deliver or cause to be delivered to the person called or texted advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice. Calls and texts must be logically and topically associated with the interaction that prompted the consent and the agreement must identify the telephone number to which the signatory authorizes such advertisements or telemarketing messages to be delivered.
47 CFR 64.1200(f)(9)(i)
The written agreement shall include a clear and conspicuous disclosure informing the person signing that:
47 CFR 64.1200(f)(9)(i)(A)
(A) By executing the agreement, such person authorizes the seller to deliver or cause to be delivered to the signatory telemarketing calls or texts using an automatic telephone dialing system or an artificial or prerecorded voice; and
47 CFR 64.1200(f)(9)(i)(B)
(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. 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.
How will the recent TCPA compliance changes impact businesses?
For businesses, the implementation of the One-to-One Consent Rule signifies a more stringent regulatory environment. Companies must now take additional steps to ensure compliance, including:
- Obtaining Explicit Consent: The term "Business" refers to the entity that is initiating the contact with the consumer, while the "Seller" is the specific party or entity that will be sending the text messages. Businesses must secure written consent from consumers for each seller they wish to contact on behalf of. This consent should be clear, unambiguous, and documented.
- For example, if a business partners with multiple sellers, the consumer must provide explicit consent for each seller individually. This ensures that consumers are fully aware of who will be contacting them and for what purpose.
- Detailed Record-Keeping: Maintaining accurate records of consents is crucial. Businesses need to ensure that they can provide proof of consent if required.
- Revising Marketing Strategies: Companies may need to adjust their marketing approaches to adhere to the new requirements, focusing on more transparent and direct communication methods.
- Training and Awareness: It’s important for businesses to educate their marketing teams and any third-party partners about the new regulations to avoid unintentional non-compliance.
What effects do the new TCPA regulations have on consumers?
From a consumer perspective, the One-to-One Consent Rule offers several significant benefits:
- Increased Control: Consumers now have greater control over who can contact them, reducing the volume of unwanted messages.
- Enhanced Privacy: By requiring specific consent for each seller, consumers can enjoy a higher level of privacy and protection against unsolicited marketing.
- Greater Transparency: The rule promotes transparency, ensuring that consumers are fully informed about who will be contacting them and for what purpose.
How can businesses prepare for the latest compliance requirements?
As the January 2025 deadline approaches, businesses should take proactive steps to prepare for the One-to-One Consent Rule. This includes reviewing and updating consent collection processes, training staff, and implementing robust record-keeping practices.
Ultimately, while the new rule may require some adjustments, it serves to create a more respectful and transparent relationship between businesses and consumers, fostering trust and improving the overall marketing experience. If you're already sending text messages to consumers, please take a look at our guide on How to Send TCPA Compliant Business Text Messages and Avoid Fines.
