Express Written Consent: What it is and Why it Matters

Express written consent, also known as opt-in, is the authorization or permission that an individual or a business gives to a caller to receive marketing messages in the form of calls or texts. If your business uses SMS and telemarketing, you need to understand how express written consent works, as it is part of stringent and tricky regulations surrounding the use of these business marketing tools.

For starters, what’s the FCC, and why are they so important?

In the United States, the Federal Communications Commission (FCC) is responsible for implementing regulations that control the way businesses go about their marketing campaigns. And why would they do that? Simple–to prevent privacy and legal infringements.

That’s where express written consent comes in. It is one of the FCC’s institutionalized checks under the Telephone Consumer Protection Act (TCPA). Under this Act, businesses like yours need to get express written consent before sending marketing messages to or calling people.

So what is express written consent, why is it so important, and what happens if local businesses don’t get it? Keep reading to find answers to each of these questions.

What does express written consent mean?

The words “express written consent” suggest that you have to get handwritten signatures, right? Thankfully, that’s not always the case. 

According to the FCC’s definition, express written consent refers to permission that someone/a business gives to a caller to receive marketing messages (including texts and calls). This is also known as an opt-in. 

While seeking permission, there should be some acknowledgment that the recipient of the messages is not forced to engage in any transaction with the sender. Also, the agreement should specify the phone number to be called and include the receiver’s signature. 

The good news is that a digital agreement can replace a written signature. In this case, the digital agreement can take any of the following forms:

• An electronic signature on a website form.
• An email selecting a designated telephone key.
• A text message or a recorded verbal agreement.

As a best practice, only send marketing messages to customers who have opted in to receive those messages. Avoid sending to contacts you have imported or people who have contacted your business for transactional purposes. Check out our guide on growing your opt-in list.

Why is express written consent so important for your business?

So why is prior express written consent vital for your business? Before we get into that, let’s take a look at some TCPA guidelines and how they apply to your business:

Some TCPA guidelines to always remember

• Never call residences too early in the morning or late at night. Stick to sometime between the hours of 9 am and 9 pm.
• Your business must maintain and retain an internal “do-not-call” list for five years.
• You are not to make marketing calls to persons on the National Do Not Call Registry.
• You must always provide your business name, a telephone number, and an address that people can contact.
• You are not to use any artificial or pre-recorded voice for your advertising calls.
• Your Automatic Telephone Dialing System (ATDS) should not dial-up emergency phone numbers, hospital emergency numbers, a physician’s office, or health care rooms.

Why You Need Express Written Consent

Many businesses often make the mistake of thinking that the TCPA laws are not binding on them. The reason for this mistake is that they mostly use marketing messages (instant, text, and SMS), while “telemarketing calls” are the terms that are used in the statute.

Interestingly, messaging has assumed the same status as calls. So you now need prior express consent from your current customers before you send them something as “small” as a text. The fact is as long as someone’s cell phone receives any form of your marketing campaign (texts, messages, and calls, among others), you need their consent.

You risk substantial fines or hefty lawsuit settlements if you send marketing messages without prior express written consent. Not to mention the damage this can cause to your relationship with your customers. Sending unwanted marketing messages may have the reverse effect you’d hope for. 

But beyond avoiding TCPA compliance issues, unnecessary lawsuits, and angry customers, getting express written consent can also be used to your advantage. How? Well, it allows you to focus on only those who are genuinely interested in your business offerings. So, in the end, you get an excellent ROI for your marketing campaigns.

Are there exceptions to this rule?

The short answer is yes, but local businesses don’t often fall within these categories. 

The FCC’s regulations don’t require express written consent for calls from tax-exempt nonprofit entities (schools and utilities), informational and political calls, and commercial calls without any marketing intent. Some examples of these calls and messages are school closures, service notifications, and emergencies.

So how do you get express written consent?

Now that you understand how vital getting express written consent is for your business, how do you get it? Here are some tips to help you:

1. Be upfront about it.

Avoid “tricking” customers into opting in to your marketing list. Be clear and ask point-blank if they would like to receive marketing messages from you. That way, they know that you intend to contact them as part of your marketing campaign, and they can accept or reject your offer. You also want to clarify that they do not have to buy anything once they give you their prior express consent. 

As stated above, this is a great way to target customers most interested in doing business with you.

2. Let them have options.

It is vital to give your customers options to stop accepting your telemarketing messages, calls, texts, or messages whenever they want. Here are some things that a prior express written consent should contain:

• The consumer’s phone number
• An affirmative agreement and explicit authorization for your business to send marketing messages.
• A clear statement that the consumer is not required to provide consent as a condition of purchasing goods or services.
• The customer’s signature (handwritten or electronic)

Telemarketing and mass text messages are great tools to drive your business because they are effective and pocket-friendly. Following text message privacy laws doesn’t have to be complicated but making sure you are TCPA compliant will pay dividends in the future.