When it comes to text message marketing and automated calls, consent isn’t just a best practice – it’s the law. The Telephone Consumer Protection Act (TCPA) strictly regulates how and when businesses can contact consumers by phone or text. But even well-meaning business owners often get tripped up by what counts as “consent.”
Miss the mark, and you could be facing statutory damages of $500 to $1,500 per message – and possibly a class action lawsuit.
What Is Consent Under the TCPA?
The TCPA defines different levels of consent depending on the type of communication:
- Informational Messages (e.g., appointment reminders): Require prior express consent (typically a phone number voluntarily provided by the consumer).
- Marketing or Promotional Messages (e.g., coupons, sales alerts): Require prior express written consent – a much stricter standard.
For business owners, this means that sending a marketing message without the right kind of consent – even to an existing customer – can put you in violation of the law.
Common Mistakes Businesses Make
Here are some of the most common and costly missteps we see:
1. Assuming a Phone Number Equals Consent
Just because a customer gave you their number doesn’t mean you can text them promotions. Marketing requires written consent with clear, unambiguous language.
2. Outdated or Non-Compliant Opt-In Forms
Many businesses rely on forms or checkboxes that don’t meet TCPA standards. Consent language must clearly state that the consumer agrees to receive automated marketing messages and that consent is not a condition of purchase.
3. Forgetting About Vendors
If your marketing agency or third-party platform sends texts on your behalf, you’re still legally responsible for ensuring they comply with the TCPA.
4. Not Keeping Records
You must maintain proof of consent for every recipient. In the event of a lawsuit, the burden is on you to show that proper consent was given.
Best Practices for Getting TCPA-Compliant Consent
- Use a dedicated opt-in process for SMS marketing
- Include TCPA-compliant disclosure language on sign-up forms
- Confirm consent with a double opt-in (optional, but recommended)
- Always provide a clear and easy opt-out option
- Keep detailed records of when, how, and where consent was given
How Trembly Law Can Help
At Trembly Law Firm, we help Florida businesses protect themselves from costly TCPA violations. Our legal team can:
- Review and update your SMS consent processes
- Vet third-party marketing vendors for TCPA compliance
- Draft bulletproof opt-in language and privacy disclosures
- Advise on best practices to minimize legal exposure
Whether you’re launching a new campaign or cleaning up your compliance, we’re here to help you stay protected and proactive.
Final Thoughts
Consent is everything under the TCPA. And in a world where lawsuits are rising fast, a simple oversight can lead to major financial risk.
📞 Schedule a consultation with Trembly Law Firm today to review your marketing practices and protect your business from avoidable legal pitfalls.