The FCC has changed its rules to require “prior express written consent” in order to auto-send commercial calls or texts. Failure to comply can open violators up to private lawsuits, and to damages awards of up to $1,500 per violation.  So what should be done to avoid pricey violations?

First, there needs to be written consent before commercial calls or texts are sent. While this rule revision was primarily meant to address robocalls, the interaction of this priority requirement with the need for “writing” means that it will have a special impact on commercial texts.  Notably, advertisers cannot send messages to consumer numbers pulled straight from interactions that begin offline (for example, from a responses to an on-TV exhortation to text in to get a coupon code).  A consumer’s consent and opt-in cannot be implied from their response to such an ad because it does not satisfy the new rule’s written requirements.

In addition, a consumer’s consent needs to be obtained in writing.  This means that implied consent or consent drawn from context will not suffice.  E-signature by email or check-box, however, will.

At the time written consent is obtained “clear and conspicuous” disclosure must also be made that the consumer is signing up for future contacts.  There must be some connection between consent and disclosure, and disclosure under the new rules must be more robust than under the old rubric.

But how does an advertiser send a text back to the consumer if they have not yet consented?  This rule applies to “commercial” contacts; the consent-request text described above would be “transactional” because it does not contain any marketing material.  So, not all contacts are cut off, but marketers must be very, very careful about auditing contact lists going forward and about avoiding impermissible contacts that move into “commercial” territory.

The Way I See It

• Many companies that cannot verify written consent in connection with previously-obtained consumer numbers may have to build their phone books back up from scratch.
• This may present an easy target for plaintiffs’ class action lawyers, since damages per-contact can be quite high and there is a lot of potential for a company to send out numerous improper contacts at once – especially in the text message context.
• These stakes may push advertisers and companies to look more closely at the line between “marketing” contacts and noncommercial ones.

Ronald R. Urbach is the Chairman of leading advertising law firm Davis & Gilbert LLP