clear and conspicuous

A Primer on TCPA Consent Language

More and more businesses are engaging potential customers via telemarketing. With this comes the growing risk of contacting consumers who have not provided proper TCPA consent. The Telephone Consumer Protection Act (“TCPA”) protects consumers against the receipt of certain unsolicited telemarketing calls and text messages. A business that violates TCPA regulations faces fines of up to $1,500 per unauthorized call or text. These violations can get extremely expensive in the case of class actions, which often involve multiple alleged violations against thousands of consumers.

TCPA Express Written Consent

One TCPA requirement that businesses often misinterpret is the need to collect prior express written consent from consumers. Informational and debt collection calls only require prior express consent. However, telemarketers are held to a more stringent standard of TCPA consent – prior express written consent. As defined by the Federal Communications Commission (FCC), “prior express written consent” is a written agreement between the caller and the call recipient that clearly authorizes the caller to deliver “advertisements or telemarketing messages using an automatic telephone dialing system or an artificial pre-recorded voice.” Please note that, in addition to traditional “wet signatures,” consumers may provide prior express written consent via electronic signature or over the phone. Businesses should follow a checklist to ensure that written consent is TCPA-compliant. A non-exhaustive checklist follows below.

TCPA Consent Basics Checklist

  1. Express consent
    A consumer must clearly articulate how he or she is providing consent. E.g., “By clicking ‘Agree and Accept,’ below, I expressly consent.”
  2. Identify the seller or marketer
    The business must be clearly identified by either its full company name or registered d/b/a.
  3. Marketing partners
    If the business has subsidiary or marketing partners that will call and/or send text messages, they need to be identified.
  4. Automated call
    If the business is using an automated telephone dialing system (“ATDS”), it must let the user know that calls/text messages will be sent using an ATDS.
  5. Not a condition to purchase
    The business is required to inform the consumer that he/she does not have to provide consent in order to make a purchase or sign up for an offer.
  6. Call-to-Action Button
    The TCPA consent language should be followed with a call-to-action button that says “Agree and Submit,” by which a consumer can indicate that he/she is providing consent to the receipt of telemarketing communications by clicking the button.
  7. Unpopulated check boxes
    Best practices dictate that an unpopulated check box be placed above or next to the call-to-action button. The consumer should be required to click on the check box before clicking on the call-to-action button.
  8. Font size and color
    Font size should be large enough so that the average consumer can easily read the language. The color of the print should be clearly visible and should not be in “greyscale.”
  9. Location of “Express Consent” language
    The express consent language should be located below the form where the consumer input his/her phone number, and above the call-to-action button.
  10. Consent language only

Only language that pertains to TCPA consent should be included.

Protect your Business by Obtaining TCPA Consent

In TCPA disputes, telemarketers bear the burden of proving that a clear and conspicuous disclosure was provided and that consumers unambiguously provided TCPA-compliant consent for the receipt of automated telemarketing communications. Adhering to the non-exhaustive checklist contained herein is one of the many ways for companies to safeguard against the many lawsuits filed in this space. 

Retaining counsel that is experienced with the intricacies and nuances of the TCPA and other telemarketing laws will go a long to protecting your business against potential litigation. If you require assistance with telemarketing law compliance or related litigation defense, please email us at info@kleinmoynihan.com or call us at (212) 246-0900.

The material contained herein is provided for information purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

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David Klein

David Klein is one of the most recognized attorneys in the technology, Internet marketing, sweepstakes, and telecommunications fields. Skilled at counseling clients on a broad range of technology-related matters, David Klein has substantial experience in negotiating and drafting complex licensing, marketing and Internet agreements.

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