THE TIMES THEY ARE A CHANGIN’ (AGAIN): A HOW-TO GUIDE REGARDING COMPLIANCE WITH
NEW FCC REGULATIONS MANDATING PRIOR EXPRESS WRITTEN CONSENT
The following fairly unremarkable scenario occurs numerous times every day in countless
commercial settings nationwide: a consumer walks up to a cash register to pay for something and,
during the course of that exchange, the clerk asks the consumer if he or she would like to receive
announcements of certain offers and/or events from the company via text messages and/or calls to the
consumer’s cell phone. Often, requests for the consumer to opt-in to a particular campaign are coupled
with incentives like a discount off the current purchase. In response to the clerk’s request, the consumer
responds “yes,” the clerk memorializes that consent by clicking a box on a customer information screen
and the consumer begins to receive text messages or calls periodically.
At first (and likely second or third) glance, this sequence seems rather innocuous. After all, how
harmful could it be to send texts to consumers who consent to receive them? However, as of October
16, 2013, this scenario could result in companies being faced with class action lawsuits brought further
to the Telephone Consumer Protection Act (“TCPA”), which is the current flavor of the month for
plaintiffs’ class action lawyers due to its incredibly punitive liquidated damages provisions of up to
$1,500 per call or text and the ability—per the statute—to aggregate individual claims on a class-wide
The TCPA—like so many ostensible consumer protection laws—is sadly not a model of
legislative clarity. Enacted back in 1991—during the halcyon days of landlines and cords—the TCPA
was initially promulgated to regulate “the use of the telephone to market goods and services to the home
and other businesses.” In re Rules & Regulations Implementing the Telephone Consumer Protection Act
of 1991, CG Docket No. 02-278, FCC Declaratory Ruling, at ¶ 2 (Nov. 29, 2012) [“Nov. 29 Ruling”].
At that time, Congress found that over 30,000 businesses actively telemarketed goods and services to
business and residential customers, that more than 300,000 solicitors called more than 18 million
American every day, and that many consumers were outraged over the proliferation of intrusive
nuisance calls to their homes from telemarketers.
The TCPA was designed to (at least in theory) protect consumers from those bulk, en masse
telephone solicitations, and therefore it imposes stringent restrictions on the sending of unsolicited calls
and texts that advertise the commercial availability of property, goods or services. Specifically, the
TCPA makes it unlawful to place prerecorded or automated calls to a residence or a cell phone without
the prior express consent of the called party. Despite the fact that this proscription pre-dated many of
today’s technologies, the FCC has concluded that this prohibition on unsolicited commercial messages
encompasses both voice and text calls, including SMS calls, if the prerecorded call is made to a wireless
number. See In re Rules and Regulations Implementing the Telephone Consumer Protection Act of
1991, CG Docket No. 02-278, Report & Order, ¶ 4 (FCC Feb. 15, 2012) (“2012 TCPA Order”).
Numerous federal courts (including the Ninth Circuit) have likewise concluded that a text message
constitutes a “call” under the TCPA, thus making text messages subject to the “prior express consent”
requirement. See, e.g., Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009) (holding that
text messaging is a form of communication used primarily between telephone and therefore consistent
with the definition of a “call”). Since the vast majority of telephonic and mobile marketing messages
these days are sent utilizing an ATDS (i.e., not manually dialed) and announce the “commercial
availability of a property, good or service,” the TCPA applies to the vast majority of telemarketing
With this in mind, consideration of each and every aspect of a proposed telemarketing campaign
has never been more important. Prior to implementing any such campaign, companies must carefully
consider the manner and form of consent received from consumers as well as ensure all customer lists
are scrubbed for opt-outs frequently. Additionally, companies must take measures to ensure that they do
not solicit residential consumers who have placed their names on the federal (or a particular State’s) Do-
Not-Call Registry. See 47 C.F.R. § 64.1200(c)(2)(ii) (providing that sellers can contact consumers
registered on the DNC Registry only if the sellers have obtained prior express invitation or permission).
New Regulations Require Obtaining Prior Written Consent From Consumers
On June 11, 2012, the FCC published its new Final Rule interpreting “prior express consent” for
telemarketing calls that will go into effect on October 16, 2013. The FCC’s new interpretation now
requires a prior, signed written agreement, specifically agreeing to receive telemarketing calls or text
messages via auto-dialer and/or pre-recorded voice.
Prior to the FCC’s Final Rule, many courts had found sufficient consent to be called if a cell
phone number is provided, absent instructions to the contrary, see Pinkard v. Wal-Mart Stores, Inc.,
2012 WL 5511039 (N.D. Ala. Nov. 9, 2012), while other courts had not, see Thrasher-Lyon v. CCS
Commercial LLC, 2012 WL 5389722 (N.D. Ill. Nov. 2, 2012). The FCC’s Final Rule is an attempt to
provide clarity to this amorphous concept as well as to harmonize its regulation with the FTC’s
Telemarketing Sales Rule (“TSR”).
Regarding the specific content of the consent, the FCC has concluded that a consumer’s written
consent to receive telemarketing robocalls must be signed and be sufficient to show that the consumer:
(1) received ‘clear and conspicuous disclosure’ of the consequences of providing the requested
consent, i.e., that the consumer will receive future calls that deliver prerecorded messages by or
on behalf of a specific seller; and
(2) having received this information, agrees unambiguously to receive such calls at a telephone
number the consumer designates.
As for the form of the consent, the FCC has indicated that a formal ink signature on paper is not
necessary for compliance. Instead, the FCC regulations make clear that a consumer’s written consent
may be obtained electronically using methods approved by the federal Electronic Signatures in Global
and National Commerce Act (“E-SIGN Act”), which defines an “electronic signature” as “an electronic
sound, symbol, or process attached to or logically associated with a contract or other record and
executed or adopted by a person with the intent to sign the record.” Consistent with FTC regulations,
the FCC has announced that “consent obtained in compliance with the E-SIGN Act will satisfy the
requirements of our revised rule, including permission obtained via an email, website form, text
message, telephone keypress, or voice recording.” 2012 TCPA Order, ¶ 34 (emphasis added). Some
examples of satisfactory consent include obtaining a confirmation email from a consumer, having the
consumer send a text message to the marketer confirming consent and requiring consumers to press a
button in response to a telephonic voice-over prompt. Evidence of Internet-provided written consent
includes, but is not limited to, website pages that contain consumer consent language and fields,
associated screenshot of the consent as seen by the consumer where the phone number was inputted,
complete data record submitted by the consumer (with time and date stamp), together with the
applicable consumer IP address.
Significantly, and unchanged by the new regulations, if a dispute concerning consent arises, the
sender bears the burden of proof to demonstrate that a “clear and conspicuous” disclosure was provided
and that the consumer unambiguously consented to received telemarketing calls to the number he/she
specifically provided. See 2012 TCPA Order, ¶ 34 (“the seller will bear the burden of demonstrating
that a clear and conspicuous disclosure was provided and that unambiguous consent was obtained.”). To
this point, the October Regulations will actually go a long way toward documenting and evidencing
consent, which has historically been a minefield for TCPA defendants. It is a best practice for senders to
maintain each consumer’s written consent for at least four years (the federal statute of limitations to
bring an action under the TCPA), beyond the date a call was last made to that consumer.
“Hybrid” Forms of Consent Obtained at the Point of Sale May Not Be Sufficient
Let’s go back to the scenario examined at the beginning of this article. A consumer is checking
out at the register of a store, and the clerk asks a series of questions designed to gauge whether the
consumer would like to receive automated calls and/or text messages on a cell phone about future
promotions. In response to the clerk’s inquiry, the consumer says that “Yes” he/she would like to
receive such commercial offers. To memorialize the consumer’s verbal response, the store clerk checks
a box on the computer screen that indicates the consumer’s “consent” to receive commercial calls on a
cell phone. Now consider the myriad of other similar scenarios, e.g., telling a consumer to send a text to
an SMS shortcode, telling a consumer to forward a text to a “friend” to receive additional perks, etc.
First, the FCC’s 2012 TCPA Order does not explicitly address these situations, nor is there any
case law on point due to the fact that the regulations have not gone into effect yet. However, under a
close reading of the 2012 TCPA Order, a plaintiff may argue that this intake procedure is not, strictly
speaking, consistent with the FCC’s rules regarding the form of written consent. While it is laudable for
companies to take measures to ensure that they maintain a documentary record of who consents and who
doesn’t, because the consumer does not perform the physical “clicking” (i.e., e-signing) of the box on
the point-of-sale (“POS”) screen, the consumer could have plausible deniability in stating that she never
expressly consented—in writing—to receive commercial texts.
This is problematic because the FCC places the burden of proving express consent on the
advertiser. Thus, in the event of a “he said, she said” situation, where the employee attests that the
consumer did affirmatively consent notwithstanding the consumer’s professed denial, the company may
be hard-pressed to satisfy its burden of proof if all it can point to is a clicked text box. Again, it is
conceivable that a plaintiff could claim that the proposed text-messaging campaign describes a situation
where the consumer provides oral consent. In the final analysis, mobile marketers face a plausible risk
of facing a TCPA lawsuit if they move ahead with text campaigns relying on consumers’ oral consent,
even if documented by the company’s employees. After October 16, 2013, oral consent will not be a
sufficient means of obtaining prior express consent under the TCPA—only written consent will suffice.
9 Best Practices for Obtaining Prior Express Written Consent
DON’T Rely on a Consumer’s Oral Consent: As discussed above, obtaining a consumer’s oral
consent to receive telemarketing calls/texts is not a sufficient means of complying with the
October Regulations, even if an employee creates a written record of such consent.
DON’T Assume that Merely Obtaining a Consumer’s Cell Phone is Enough: The new
regulations explicitly state that the written agreement between the consumer and the marketer
must include a “clear and conspicuous” disclosure informing the consumer that he/she is
consenting to receive telemarketing calls/texts using an ATDS or prerecorded voice.
DON’T Condition Additional Purchases or Incentives on a Consumer’s Consent: The
regulations also explicitly state that the marketer cannot require the consumer to agree to such
telemarketing, either directly or indirectly. While it is permissible to tell the consumer that
he/she will receive promotional offers and extol the advantages of receiving such offers, it is best
not to pressure consumers such that they feel they’re obligated to sign up.
DON’T Make Calls or Send Texts to New Consumers Until Written Consent is Procured:
Thankfully, the E-SIGN Act makes it possible to obtain the required consent electronically, e.g.,
via text message or email. However, if the marketer relies on text messages to procure written
consent, it is important to remember that the consumer must first text the SMS short code to
indicate his/her consent to receive telemarketing messages. A telemarketer cannot send a text
message that asks the consumer to agree to receive such messages, because strictly speaking this
would be an unsolicited communication. The consumer must affirmatively opt in by sending a
text before any commercial texts are sent.
DO Send Text Messages Requesting E-Signature Responses to Those Consumers Who
Have Already Opted In to Receive Text Messages, Prior To October 16, 2013: To ensure
that all recipients of text messages have provided prior written consent prior to October 16, 2013,
before that day companies should send “confirmation” texts to consumers who have already
opted to receive text messages. These confirmation texts should require the consumer to respond
to such texts to make sure that the written consent requirement is fulfilled.
DO Tell Consumers in Writing They Will Receive Automated Telemarketing Calls and/or
Text Messages if They Opt In: It is best to be as explicit as possible about the types of
telemarketing messages the consumer will receive, as well as the frequency of the messages.
DO Implement a Mechanism Allowing Consumers to Opt Out: Even if a consumer provides
express written consent to receive telemarketing messages, the consumer must be able to revoke
such consent at any time 24/7. Therefore, make sure that every call/text message contains
information telling the consumer how to opt out.
DO Ensure That the Consumer Affirmatively Consents by Providing a Valid Signature:
The 2012 TCPA Order clarifies that written consent cannot be obtained by “proxy,” i.e., by
telling a third party that the consumer consents and then having the third party write it down.
Thus, whatever the medium through which consent is obtained (e.g., written form, email, text
message), it must be the consumer—nobody else—who provides the requisite written consent.
DO Utilize Popular, User-Friendly Technologies to Obtain Valid E-Signatures: With the
ubiquity of tablets, smartphones, mobile apps and other emerging technologies, companies
should explore innovative new methods for obtaining e-signatures from consumers that verify
their consent to receive telemarketing messages.
* * *
TCPA litigation can be difficult to predict, and federal courts nationwide have been disinclined
to dismiss TCPA suits at the pleadings stage (thereby necessitating costly and disruptive discovery).
Although the new regulations impose an additional burden on companies, the regulations should also
dispel the frequent uncertainty about whether or not a consumer provided “prior express consent.”
Companies will no longer be able to fall back on the defense that the TCPA does not specify the precise
form of “prior express consent” required. Times have indeed changed, and as of October 16, 2013, only
written consent will suffice.