Background Information. In 2012, the Federal Communications Commission (FCC) adopted final amendments to its Telephone Consumer Protection Act (TCPA) regulations (Amended Rules). As of October 16, 2013, the Amended Rules prohibit persons from initiating a call to a cellular telephone number using an automatic telephone dialing system (ATDS) and/or prerecorded message unless the call recipient has provided “prior express written consent” (written consent) to be contacted at that number. This document sets forth the requirements for obtaining legally sufficient written consent and discusses the applicability of these requirements in various contexts.
- Summary of Requirements
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- Written Agreement. Consent must be obtained in a written agreement, which includes the signature of the person providing consent. An electronic signature is sufficient to effectuate a written agreement in accordance with the E-SIGN Act (see Section C(3) below).
- Identity of the Seller. The agreement must specifically indicate the seller(s) to whom consent is being provided.
- Telephone Number. The agreement must include the cellular telephone number at which the person consents to receive calls. If the written agreement includes more than one number, it must be clear which number(s) the person is consenting to receive calls at.
- Affirmative Action. The consumer must take some affirmative action to indicate his/her assent.
- Mandatory Disclosures. The agreement must clearly and conspicuously disclose:
- That the person is authorizing the seller to make telemarketing calls;
- That calls will be made using an ATDS (or prerecorded message, if applicable); and
- The person is not required to provide consent as a condition of purchasing any good/services.
- Documentation. The seller has the burden of proof to show that consumers provided written consent to be called. All records should be kept for at least 5 years from the last date the consent is relied upon to make a call.
- Text Msg. Best Practice. The CTIA, a trade group representing the wireless carriers, issued best practices for the use of text messages in marketing. As part of those best practices, a business should obtain consent for the text messages and advise that message and data rates may apply.
- General Considerations
- Clear and Conspicuous Disclosures. To be clear and conspicuous, a disclosure must be likely to be seen and understood by reasonable consumers. This means it should be separate and distinguishable from unrelated provisions/disclosures and in close proximity to the place where the consumer provides consent. Disclosures are not clear and conspicuous if they are buried in a lengthy document such as a Privacy Policy or Terms and Conditions. Disclosures made in fine print or in a footnote are typically insufficient.
- Incentivizing Consumers to Provide Consent. The FCC expressly prohibits sellers from requiring that consumers provide written consent as a condition of purchasing good or services. It is unclear whether this rule prohibits sellers from incentivizing consumers to provide consent (e.g., providing a discount, gift, prize). The Federal Trade Commission has, however, provided guidance that its prohibition against sellers requiring consent as a condition to make a purchase extends to situations where consent is obtained as a condition for consumers to receive or purchase any goods or services. To avoid this potential pitfall, sellers could provide consumers with an alternative method to obtain the incentive without providing consent.
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- E-SIGN Act. Congress enacted the E-SIGN Act to promote the acceptance and use of electronic signatures and remove barriers to commerce associated with paper-based signature requirements. Pursuant to the E-SIGN Act, electronic signatures may be used to create a legally binding agreement. The term “electronic signature” is defined broadly to include “any 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.” When adopting its Amended Rules, the FCC specifically stated that such rules do not require the written agreement to be in a particular form or format and that, pursuant to the E-SIGN Act, consent obtained via an “email, Web site form, text message, telephone keypress, or voice recording” would satisfy the rule as long as the other requirements (outlined in Section B) are met.
- Re-Assigned Numbers. The FCC and courts have held that a seller violates the TCPA if it calls a cellular telephone number that was reassigned to a person that has not provided consent to be called (i.e., the previous owner of the number provided consent to be called at that number, but the new owner did not). To help prevent this from occurring, we recommend using all available services/resources to determine if a number has been reassigned before calling that number.
- Consent Forms and Scripts. All consent forms and/or scripts used to get written consent should be carefully drafted so that a consumer’s failure to provide the requested consent does not constitute a Do Not Call request. Forms and scripts should not be used until approved by the compliance department and/or legal counsel.
- Considerations for Various Methods of Obtaining Written Consent
- Paper Consent Forms
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- Name and Signature. Have consumers print their name and obtain actual signatures.
- Customer Agreements / Order Forms / Other Agreements. Obtaining consent in the context of a larger agreement raises concerns regarding the conspicuousness of the disclosure and whether consent is required as a condition of making a purchase (i.e., the validity of the consent). Sellers can overcome these issues by including a separate consent provision within the document and having the customer specifically consent to this provision by signing/initialing the provision or checking an “I agree” box.
- Record Retention. Copies of all written agreements should be retained in accordance with Section B(6) above (storing in electronic format is sufficient). To help prove when consent was obtained, the agreement should include the date.
- Language: ____ I agree that Goldstar ATM LLC may contact me with offers at the phone number above, including by text msg., autodialer or prerecorded msg. Consent not required for purchase. Msg. & data rates may apply.
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- Online Consent Forms
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- Customer Agreements / Order Forms / Other Agreements. Same considerations as outlined for Paper Consent Forms.
- Affirmative Action and Signature. Electronic signatures can be obtained online by requiring the consumer to take some affirmative action to indicate his/her assent to the agreement. The use of a “Submit” button and appropriate disclosure language (e.g., “By pressing the ‘Submit’ button, I agree to receive…) is likely sufficient if the form is used exclusively for obtaining written consent to call the consumer. If the form serves a broader purpose (e.g., a registration page, a profile page, order form), an additional step should be required for consumers to provide consent (e.g., checking a consent box).
- Clear and Conspicuous Disclosures. All disclosures should be made in immediate proximity to and above the button that consumers will use to provide their electronic signature and assent to the agreement (e.g., “Submit” button or “I Agree” button). Courts increasingly find disclosures below the button are not effective. PEWC disclosures should not be combined with consent disclosures to agree to the website’s Terms of Use and/or Privacy Policy.
- Recordkeeping. Sellers should collect and retain the following information for each person that provides consent: (i) name; (ii) telephone number; (iii) time/date of consent; (iv) the consumer’s IP address; and (v) URL where the consumer provided consent. Additionally, sellers should be able to produce and substantiate the exact language used on the webpage at the time consent was obtained; therefore, all changes to the online request form must be documented.
- Language: [ ] By checking this box, I give my elec. sig. and consent that Goldstar ATM LLC may contact me with offers at the phone number above, including by text msg., autodialer or prerecorded msg. Consent not required for purchase. Msg. & data rates may apply.
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- E-mail Consent Forms
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- In General. These considerations apply to situations where a seller uses consumers’ e-mail responses to get written consent to call cell phones. If a seller uses e-mail campaigns with links to its website (where consumers actually provide the consent), the considerations outlined for Online Consent Forms apply instead.
- Clear and Conspicuous Disclosures. The required disclosures outlined in Section B(5) of this document should be clearly and conspicuously made in the body of the e-mail sent by the seller, which requests consumers to provide written consent.
- Telephone Number. The consumer’s cell phone number must be included in the e-mail agreement. A seller can either list the phone number in its original e-mail or require the consumer to provide it as part of their reply e-mail.
- Affirmative Action and Signature. To get consent, sellers should require consumers to reply to the e-mail with a specific phrase such as “I agree” or “I consent” and type their name (to constitute a signature).
- Language: By replying “I agree,” I give my elec. sig. and consent that Goldstar ATM LLC may contact me with offers at my phone number in this e-mail [alternative: “at the phone number I will provide in my reply”], including by text msg., autodialer or prerecorded msg. Consent not required for purchase. Msg. & data rates may apply.
- Consent via Telephone (Voice Recordings / Key-Press)
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- Clear and Conspicuous Disclosures. The required disclosures should not be grouped together with other disclosures (e.g., order confirmation). The disclosures should be provided to the consumer separately and consent should be obtained from the consumer immediately after the disclosures have been made.
- Affirmative Action and Signature. Sellers can obtain electronic signatures/agreements by recording consumers’ verbal consent or having them press a certain button on their phone after the required disclosures have been made. When responding verbally, consumers must indicate their assent by providing an affirmative “Yes.” Consumers’ silence and/or ambiguous statements such as “uh huh” are not sufficient. If a key-press is used to obtain consent, the seller should have the capability of capturing and identifying the tone to substantiate that consent was received.
- Scripting and Dispositions. To ensure all requirements are met, agents should use mandatory scripts to obtain consumers’ consent and ongoing agent monitoring should be conducted. Additionally, we recommend that sellers create a “Written Consent” disposition to help distinguish customers that provided consent from those that did not.
- Recordkeeping. When consent is obtained via telephone, the call recordings and/or key-press tones must be retained in accordance with Section B(6) above. Sellers should keep all call recordings for this time period or have a process to segregate recordings where consent was obtained (which must be retained) from recordings where consent was not obtained (which do not need to be retained unless otherwise required by the seller’s record retention policy or applicable law).
- Language. We would like to call or text you at (phone number) with offers. We may use an autodialer or prerecorded message. Your consent is not required as a condition of purchase. Message & data rates may apply. Do you consent to these communications?
