July 27, 2015
Much has been written about the Federal Communication Commission’s (“FCC’s”) recent 138-page Declaratory Ruling and Order that broadened the scope of the Telephone Consumer Protection Act (“TCPA”) and will likely encourage even more TCPA lawsuits. One part of the ruling that has received less press, but deserves attention is the FCC’s clarification of the prior-express-written-consent rule that became effective on October 16, 2013. In its recent ruling, the FCC acknowledged that the effective date of the prior-express-written-consent rule was unclear. If your company is sending, or causing to be sent, text message advertising or telemarketing messages to consumers relying on consents provided before October 16, 2013, review those consents to ensure compliance with the recent update.

Common questions include:

  • If a consumer’s consent was obtained before October 16, 2013, is it invalid (even if in writing) if the consent agreement does not meet all of the current requirements? 
  • Or, must a company seek updated consents from existing consumers to continue to send them text message advertising or telemarketing messages if the existing consent met the standards of the prior rule, but not the revised one? 
For answers to these questions and additional analysis, please click here.