Guide to TCPA Customer Communications and Consent

Bottom line: you need consent for your business or organization to call and send text messages. This isn’t negotiable.

If you don’t get the right level of consent at the right time for the right kind of conversation, you could get into serious trouble with the law.

In short, unless a contact gives you prior express written consent, the TCPA, and FCC rules ban both robocalls calls and robo-texts with artificial or prerecorded voice and/or messages from autodialers.

Consent varies based on the various types of conversations you have with your customers (Conversational, Informational, Promotional, etc.) and on the nature of the conversation (Transactional or Promotional).

Technology and automation also play an important factor. Getting the right kind of consent depends on the content of the message and who or what sends it first.

Generally, you need three things before you start texting your customers.

1. General Customer Consent You need to obtain your customer’s consent to send them conversational, informational, and transactional messages.

2. Express Written Consent To send customers automated marketing and promotional messages you need their express written consent.

3. Any-Time Opt-Out Your customers need to be able to revoke their consent, opt-out and stop receiving text messages from your business at any time they choose.

Conversational text messaging is a one-on-one two-way conversation between you and your existing customers or known contacts with an existing business relationship.

If a customer texts your business first and you respond quickly with a single message, then it is likely conversational.

As long as you respond with relevant information, then you don’t need verbal or written permission.

This is called implied consent. It’s based on the already established relationship you have with your customer or contact.

Informational messaging takes place when a contact gives your business their phone number and asks to be contacted in the future.

Informational text messaging includes appointment reminders, welcome texts, and other alerts and notifications.

These messages are all in this category because the message content fulfills your contacts’ original request.

For informational text messaging, your customer does need to agree to receive texts specifically for informational purposes.

This is called express permission. Contacts may grant you this permission via text opt-in, on a form, on a website, verbally or with written permission.

Express consent may also be orally recorded for all non-commercial, informational texts from tax-exempt nonprofits, political campaigns, and other non-commercial entities.

Promotional text messages are messages that directly promote, market, and sell your business, product, or service. Before your business sends any promotional text messages, you need express written consent.

Contacts may sign a form, check a box online, etc. to receive promotional text messages. The important part is that you have this consent in writing.

If you already ask customers to sign forms or submit their contact information, then consider adding a field to account for this level of consent.

Note: This table gives examples of the types of text message conversations and required consent. This does not qualify as legal advice. It isn’t a substitute for legal advice from qualified professionals.