Understanding Consent

The importance

An important consideration is the understanding of consent and what it entails for SMS marketing. Per the TCPA and the CTIA, there must be required expressed consent from the end user before the SMS messaging from the short code can begin. No consent means that absolutely no messages can be sent to that user.

In addition, consent doesn't mean that SMS marketing content can be sent with no restrictions.

Rules and Regulations of SMS Marketing Content

1. Users must give proper consent specific to the state and country, to the TCPA and to the CTIA regulations
2. Users on the Do-Not-Call registry must not receive any SMS marketing content
3. Keep proper track of the date and time a user subscribes/provides written consent
4. Users may choose to opt-out in any way and the decision must be honored
5. Users must not receive SMS marketing content outside of the TCPA defined hours
6. Users must not be spammed with messages per TCPA

Overall, the main consideration is to be respectful of the user and apply common sense when crafting and sending SMS marketing messages.

What are the types of consent?

There are two forms of consent: Explicit Consent, assumed to be Expressed Consent, and Implicit consent.

In explicit consent, there is a clear form of consent through which the user has clearly stated that they want to receive short code messages from your marketing platform.

Overall, the user consciously understands that they are consenting to receiving marketing messages. This means that the user might have subscribed by signing up to receive messages and emails through a form or pop-up on your shop’s website, willingly filled out a mailing list form in person in the shop, or verbally agreed to wanting to receive marketing messages. Through this expressed consent, the subscriber pool may now receive all SMS messages from the brand with no expiration until the user wishes to unsubscribe.

A potential drawback of explicit consent is that the subscriber pool may grow more slowly considering that less users will knowingly opt-in to receiving the marketing messages. However, the user pool will be of higher quality and interested in the brand marketing messages.

Implicit consent is considered to be when there has not been no explicit request or agreement that the user wants to receive marketing messages. Possible examples include filling out a form after completing a purchase where the user has not explicitly agreed or completed any process agreeing to receive short code messages or providing their contact details through any business card, occasion or agreement. There are heavy limitations and restrictions to implicit consent considering that the user has not knowingly agreed to receive any or all marketing messages from the short code.

Potential Issues

Issues that may arise when collecting the user’s contact details from inferred consent is that the user will opt-out and has the option to flag the messages as spam. Being considered spam may lead to a variety issues, the worst case scenario is being moved to the block-list of the specific email service platform.

Of course, another issue with not receiving the proper consent prior to ending out SMS marketing messages is running into legal issues. Consumers who have not explicitly provided their consent may choose to seek legal action as their right to privacy and right to consent is being violated. It is important that as a company, you are educated on privacy laws and SMS compliance.