Derek: Hi, everyone, Derek Johnson with tatango.com.
Today, I’m at Innovista Law home with the TCPA Defense Force.
And I’m sitting with Joe Bowser, an attorney that specializes in TCPA, the Telephone Consumer
Protection Act.
So one of the questions we get asked, Joe, all the time is “What does written consent
mean?”
Because that’s part of the Telephone Consumer Protection Act, when you send a marketing
message, or sales, or solicitation, you have to get written consent.
Now but for text messaging, how are you supposed to get written consent?
Does that mean that somebody has to take a pen and write down their consent?
Explain that to me.
Joe: I prefer wet wax.
No for text messages, so all written agreements under the TCPA require certain threshold elements.
It needs to be in writing, it needs to be signed, right?
We’ll get into that in a second.
You need to know which number you’re giving consent to the text, they need to know that
the messages are going to be marketing messages, and they need to know that they’re going
to be auto-dialed, right?
So you just raised the question of how do they sign this thing.
One of the best methods for SMS is to use the double opt-in method, right?
So they’re gonna typically respond to a call direction.
Derek: Like a keyword text in pizza12345.
Joe: Exactly.
So you know their number, right?
And then your system will generate a responsive message that says, that concludes all of those
elements, has a link to the terms of service, and when they respond “Yes” to that message,
that “Yes” functions under the e-sign act which is a permissible form of signature
under the TCPA.
That “Yes” functions as their signature.
Think about it like a website, so if you’re going on a website, and you click a checkbox,
it doesn’t feel like your name.
You actually haven’t…
Derek: Actually put your name on…
Joe: Scribble something onto a screen but for purposes of the e-sign act that checkbox
or that “Yes” responding to your message functions like a signature.
Derek: Okay, that’s the e-sign act, right?
Joe: The e-sign act.
So the TCPA regulations provide that assuming that you comply with the e-sign act, that
signature qualifies, so you don’t need the king’s ring and the wax…
Derek: Right, or sign a piece of paper.
So just by replying “Yes” to a text message that has the things that need to be laid out
there, that would be considered a person’s signature.
And I guess the TCPA could make it clear because it says “Written consent.”
They could say digital consent, that would be…
Joe: That would be fine.
And you have to kind of drill down into what constitutes consent in a signature to make
sure that you’re comfortable, but it’s absolutely fine for purposes of the TCPA.
Derek: And I guess because it says “Written consent” you could also have people sign
a piece of paper if you wanted to.
Joe: Sure.
But plenty of retail outlets have…
Derek: …paper form.
Joe: The required language you know at the retail outlet, at the checkout, you could
have it on your website, so you can have a website designed that makes sure that they
consent to all of those elements, they put in their number.
Now, of course, you’re making sure, there’s nothing there that you’re making sure that
they didn’t fat-finger.
Derek: Typing in a wrong phone number.
Joe: Wrong phone number, putting their friend’s phone number, right?
So there are best practices surrounding how to make sure that that really is their phone
number, so you could send a confirmatory text to that number if you use the web-based opt-in.
And so that’s a good practice just to make sure that if you’re gonna send…
Derek: It’s not somebody else.
Joe: …any messages to an incorrect number, you only send one.
Derek: So I guess you’re saying is that an e-sign could technically be from, it could
be on the website, it could be at a point of sale, where, by putting in your phone number
and clicking “Yes” that could be considered e-signature.
Joe: Correct.
Derek: Or a consent.
If it’s via text message, someone’s texting like pizza12345, that would be a consent too,
but it’s also a good idea to just double check that consent to reply “Yes” to consent
all the things that need to be disclosed in the TCPA.
Joe: Sure, sure.
And you know that probably sounded weird a few years ago, but in our current environment,
you know we do click, clickwrap agreements every day, right?
When we update our software, when we purchase something online, we don’t put our signature…
Derek: Exactly, signature everywhere.
Joe: Right.
Derek: Okay.
Joe: So the e-sign act is designed to kind of tailor signatures to the modern experience.
Derek: Okay.
Well, that’s perfect.
So we are here at Innovista Law home with the TCPA Defense Force.
I’m sitting with Joe Bowser.
My name is Derek Johnson, and we just talked about how written consent does not mean you
actually have to write it with a pen.
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