Obtaining & Observing Message Consent

Per the FCC TCPA, express consent must be obtained prior to sending messages. The form which that consent must take varies depending on the nature of the campaign and its content. Reference the table below for a better understanding of consent needed to meet carrier expectations.

Consent Per Content Type

The following information references the CTIA Messaging Principles and Best Practices.

* IMPLIED CONSENT occurs when a consumer initiates an inquiry to a business via text chat and the business replies to the consumer’s inquiry with only information that is relevant to that initial inquiry. Exchanges of this nature constitute “implied consent” and do not require verbal or written permission. Please note that the implied consent applies only for that relevant exchange - any additional messaging would require express or express written consent.
** EXPRESS WRITTEN CONSENT standards can be met by literal handwritten documentation or by electronic or digital forms of signature from a website, inbound text message, or email.

Informed Consent

Remember - consent must not only be obtained, but must be informed when obtained, in order for it to be considered “express” consent. That means that the end-user is aware, at the time they opt in, that they are agreeing to receive text messages. Some examples of reasonable consent mechanisms, when accompanied by appropriate consumer disclosures, include the following:

• Entering a telephone number through a website (which discloses they will receive texts by providing their number)
• Clicking a button on a mobile webpage (which discloses they will receive texts by clicking the button)
• Sending a consumer-initiated text message containing a keyword (after being instructed to do so by a clear and conspicuous CTA)
• Signing up at a point-of-sale or other message sender on-site location (wherein the end-user is informed directly they will receive texts upon sign-up)
• Opting in over the phone using IVR (which discloses that by opting in, they are agreeing to receive texts)

Note that the disclosures must not only be present, but must be clear and conspicuous, and should contain the following:

1. Program/Product Description
2. Identity of organization/individual being represented
3. The scope of opt-in and opt-out mechanisms and any applicable privacy policy

Informational & Promotional CTA & Opt-In

The CTA is the point at which the consumer is made aware of the campaign and provided a method or directions for how to opt in or otherwise consent to receive messages. CTAs must always be clear and conspicuous and never misleading so that customers fully understand what they are consenting to when they opt in. In some cases, the CTA and the point of opt-in or consent may be one in the same, such as a description beside a checkbox explaining that checking the box will opt the consumer into receiving text messages. In order to ensure your CTA and opt-in are clear and conspicuous, not misleading and are adhering to legal and industry requirements of proper consent, we recommend following these guidelines:

1. Always the purpose of the text messages the end-user will receive and the nature of the content they can expect.
2. Provide the source number (long code, toll-free number, short code) from which the end-user can expect to receive messages.
3. Ensure the organization or individual behind the messages is clear in the CTA, opt-in and initial message.
4. Explain any and all associated fees and charges explicitly (“message and data rates may apply”)
5. Provide access to opt-out instructions, company or mobile terms & conditions and company privacy policy.
6. Keep the CTA and opt-in separate from the Terms & Conditions.
7. If you are unsure whether your use-case is Informational or Promotional, follow guidelines for Promotional messages.
8. Perform a double opt-in in cases where consent was initially collected outside of SMS channels.
9. Update opt-in instructions in any/all CTAs whenever necessary to ensure they always work correctly.

Opt-Out Requirements

It is required for all text messaging programs to provide a way for consumers to revoke their consent to receive messages, or “opt out” of messaging programs. To ensure this is observed, all messaging programs must:

• Clearly and conspicuously display opt-out instructions at point of opt-in as well as in the CTA or Terms and Conditions and regular intervals of content service messages (min. once monthly) for recurring message programs.
• Provide an SMS-based opt-out method. It is recommended to offer other methods as well, including phone or email in addition to text.
• Ensure any/all published opt-out instructions are kept up-to-date and work as-described.
• Recognize universal keywords STOP, END, QUIT, CANCEL, UNSUBSCRIBE as valid method of opt-out in addition to any/all otherwise published/displayed opt-out methods. Customer use of these keywords or other displayed opt-out methods must trigger an opt-out event.
• Respond to an opt-out event with a confirmation that an end-user has opted out, regardless whether they were subscribed at the time they sent the message.
• Recognize the aforementioned universal keywords regardless of any other accompanying combination or permutation of text content, punctuation, capitalization without inference and trigger the opt-out event for that end-user.
• Remove end-users from any subscriber lists to prevent the end-user receiving any additional messages after opt-out except for the opt-out confirmation message triggered by the opt-out event.
• Allow end-users to opt out at any time without penalty beyond the loss of benefit provided by the canceled subscription itself.
• Understand that carriers, hubs and Convey reserve the right to impose opt-outs at a network level for any reason. (Note that this exists already on the carrier-level for toll-free numbers.)
• Monitor and process published carrier deactivation/deactivated number lists daily.

Network-Side Toll-Free Keywords

For toll-free numbers, end-users who send “STOP” will be opted out on the carrier side. This means that they will receive a carrier response to “STOP.” Additionally, they have the option of opting back in using one of two carrier keywords - “UNSTOP” or “START” - both of which lift the carrier-side block the “STOP” had placed.