The fundamental issue
underpinning consumer privacy protection and telemarketing/text message
marketing activity is that of consumer consent – and the extent to which a
prospective marketer has secured such consent. 
Without obtaining the proper consent, as required under various statutes
such as the Telephone Consumer Protection Act (the “TCPA”) and the Telemarketing
Sales Rule (the “TSR”), certain telemarketing activity will be illegal and may subject
the marketer to exorbitant fines and other significant liability.

Consumer
Consent in the TCPA Era

Under the TCPA, the “Established
Business Relationship” exception no longer relieves marketers of the need to
obtain separate, standalone “prior express written consent” – at least when making
telemarketing calls or delivery text messages to mobile telephones using an
autodialer or pre-recorded messages.  Further,
a recent declaratory ruling from the Federal Communications Commission (the
“FCC”) reiterated that text messages are “telephone calls” within the meaning
of the TCPA, and established such an expansive definition of “autodialer” that
almost all forms of telemarketing would be considered conducted via an autodialer.

Given that almost all
telemarketing activities (and literally all text message marketing) will
involve at least some mobile telephones, obtaining “prior express written
consent” in the TCPA era is a must.  There
are two primary vehicles for obtaining consumer consent for telemarketing
purposes: the “Submit button” language and the Privacy Policy.[1]  Consent can also be obtained in an actual
written and signed document, as well as over the phone under certain
circumstances.

“Submit
Button” Language

Whether obtaining consent via an
online form, a signed written document or over the phone, for consumer consent to
be considered valid under the TCPA, it must be unambiguous, meaning that the consumer must receive a “clear and
conspicuous disclosure” that: (1) he or she will receive future calls/texts
that deliver autodialed and/or pre-recorded telemarketing messages on behalf of
a specific advertiser; (2) his or her consent is not a condition of purchase;
and (3) he or she must designate a phone number at which to be reached. 

Below is an example of “Submit
button” language that would satisfy the TCPA’s standard for obtaining consent.

Privacy
Policies

In addition to obtaining consumer
consent via an online form, a signed written document or over the phone,
advertisers must ensure that their Privacy Policies contain adequate
disclosures regarding telemarketing activities, including an easy means to
opt-out of receiving telemarketing calls in the future. 

Below are examples of Privacy Policy provisions
addressing TCPA and TSR-related disclosures:

Penalties/Fines

The TCPA alone provides
for either actual damages or statutory damages ranging from $500 to $1,500 per non-compliant
telephone call/text message.  Considering
that text message marketing campaigns often involve thousands – or in some
cases, millions – of text messages, potential damages under the TCPA may
escalate especially quickly for SMS marketers. 
Traditional telemarketing campaigns also involve a high volume of calls
and, thus, expose the marketer to considerable liability.  Accordingly, it is recommended that telemarketers
retain qualified legal counsel to ensure that they obtain and maintain adequate
consumer consent in connection with their telemarketing activities.