Express consent requirements
With that in mind, let’s talk a little more about what prior express written consent really means. Remember, this form of express written consent is required before you can use an automated call for telemarketing purposes.
Over the years, there have been multiple court cases that expanded on definitions, and as a result, there are a few key points to get through.
As a standard, prior written consent is required before you place these calls. Such consent requires you to clearly outline what is involved in writing.
Using the pizza example, the check box has to make it clear that you plan to place telemarketing calls if they check that box.
Furthermore, the customer has to sign the agreement. That’s also a standard rule. If they check the box but don’t provide a signature, then the consent is not valid. But once the individual checks the box and provides a signature, they are consenting to receive messages from your business.
That said, consent in a digital world is a lot more complicated than it used to be. The courts recognize and validate digital signatures. So, if your consent form includes sufficient digital signature and verification, then that counts.
So, how do you know if your online tools are good enough? You have to do a bit of homework. You can review the rules with the FCC to get the full details.
But, if you want to be sure that you have clear consent before you start, try sending out an opt-in email to your customers. Opt-ins are sent to subscribers who have already provided their email addresses to join your mailing list.
Implied consent requirements
All of the above steps are required with express consent. However, if your call isn’t automated, even though it’s a telemarketing call, you can proceed with implied consent. This is a bit simpler.
Implied consent means that the person knowingly and willingly divulged their phone number to you. The idea is that if they really didn’t want you to call them, they wouldn’t give you your number.
Going back to the pizza concept, if the customer provides a phone number, even if they don’t check the box, you can place non-automated marketing calls to them, provided you follow the other rules.
Keep in mind that consent can be withdrawn at any moment, and once that happens, you cannot place any calls for marketing purposes.
There’s another concept that’s important to understand when discussing implied consent. If the customer did not knowingly provide their number to you, then they didn’t give implied consent.
For example, if you pull the number from a caller ID or similar tool, then you do not have legal authorization to place marketing calls. You must obtain implied consent to continue making telemarketing calls to the individual.
Assuming you follow the rules of consent, there are a handful of other rules that are clearly defined in the TCPA, and you need to know them before you try to use telemarketing to grow your audience.
First up is calling hours. You cannot call someone at any given time. Instead, marketing calls can only be placed between 8 a.m. and 9 p.m., and that’s the local time for the call recipient. So make sure you pay attention to time zones before scheduling calls.
You also have to limit the number of times you place calls. Repeated calls can violate these rules. This number is not clearly defined, but the best practice is to avoid calling the same person multiple times in the same day.
No one wants to receive unwanted telemarketing messages multiple times a day every day of the week. Not only will this reflect badly on your business, but it will also push customers away.
You also must honor a customer’s request to be left alone. There is a national Do Not Call registry. Any customer can request to have their name and number placed on that registry at any time. It is always a violation of TCPA to call a number on that registry for marketing purposes.
Note again that there are exceptions to this rule. For example, if you order a pizza and are on the Do Not Call (DNC) list, the store can still call you to explain that they’re out of a certain topping that you ordered. That’s not a marketing call and therefore will not be a violation of the TCPA.
If you use an automated system for marketing calls, you can automatically ban any unsolicited calls from the DNC registry.
Text message restrictions
If you’re looking into using text message marketing campaigns as part of a multichannel campaign, SMS messages on mobile phones also have their own set of restrictions. Keep in mind that these rules apply to SMS and MMS communications on mobile phones.
First up is consent. This works the same way as consent for calls, but with an extra step. Providing a phone number does not constitute consent to send messages or receive texts.
You must express a desire to use and receive text messages for communication. If you do, then you can send marketing and promotional texts only.
This applies to both express and implied consent. Text message communication is treated more harshly under the rules than phone calls. Or, put another way, text message communication is assumed to be automated under the same rules.
So, you always need to obtain express written consent to send marketing or promotional text messages, and that consent has to clearly request permission for text messaging — not just for marketing messages but phone communication in general.
You also must provide a means for customers to both opt-in and out of text message communications. Typically, this can be automated.
For example, you can say “reply STOP to opt out of these promotional text messages,” or something to that effect. A good automated system can handle opt-out requests for you.
Automatic Telephone Dialing System (ATDS) restrictions
ATDS tools are commonly used for telemarketing, and that’s perfectly legal, as long as you follow the restrictions in place.
Most of this was already outlined in previous sections. If you use an automated system, then you need express written consent first. However, there are a few best practices to keep in mind.
First, make sure your ATDS has access to the DNC registry and does not dial those numbers. Second, ensure that your system is capable of responding to an opt-in or opt-out request. Since the system is automated, you can treat this like a text message and provide a means for the customer to opt-in or opt-out anytime.
Remember that the time limitations and call limitations are still in effect. The general rule is to respect the person being called.
Don’t spam them or send messages. Try not to annoy them. Do that and you’ll avoid the majority of problems, but it’s always good to audit your system to ensure that it is compliant with all regulations.