What Consent a Company Needs Before It Calls or Texts You

Answer first: a text counts as a call

The federal rule is written about telephone calls, and it says in its own words that a text is one of them.

In the paragraph carrying several exemptions, the regulation states that the term call includes a text message, including a short message service call.

That single line is why everything below applies to the message that arrives on your phone about a refill offer or a promotion.

The general prohibition sits at the top. No person or entity may initiate a call using an automatic telephone dialing system or an artificial or prerecorded voice to a number assigned to a cellular telephone service. The same is true of any service for which the called party is charged for the call. The exceptions are calls made for emergency purposes and calls made with the prior express consent of the called party.

Marketing raises the bar. Initiating a call that includes or introduces an advertisement or constitutes telemarketing, using such a system or voice, to those same numbers requires the prior express written consent of the called party.

What prior express written consent actually is

The term is defined, and the definition is more demanding than a checkbox implies.

It means an agreement, in writing, bearing the signature of the person called. It clearly authorizes the seller to deliver advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice. And it identifies the telephone number to which those messages are authorized.

The agreement must carry a clear and conspicuous disclosure telling the person two things.

First, that by executing the agreement they authorize the seller to deliver telemarketing calls using such a system or voice.

Second, and this is the one worth remembering, that signing is not required. The person is not required to sign, directly or indirectly, or to agree to it as a condition of purchasing any property, goods or services.

Signature includes an electronic or digital form, to the extent that form is recognized as valid under applicable federal law or state contract law.

So consent to marketing texts is a separate, written, signed thing that cannot be a condition of buying. A page that makes agreement to marketing messages a requirement of checkout is not describing what this definition permits.

One word revokes it, and the company does not get to pick the word

The revocation paragraph is the most useful part of the whole section for an ordinary reader.

A called party may revoke prior express consent, including prior express written consent, by using any reasonable method to clearly express a desire not to receive further calls or text messages.

Seven words are named as reasonable per se when sent in reply to an incoming text: stop, quit, end, revoke, opt out, cancel, and unsubscribe.

So are two other routes. Using an automated, interactive voice or key press opt-out mechanism on a call, and using a website or telephone number the caller designated to process opt-out requests.

The consequence is stated flatly. If a called party uses any such method, that consent is considered definitively revoked and the caller may not send additional robocalls and robotexts.

Other words still count. If a reply uses words other than the seven, the caller must treat it as a valid revocation request if a reasonable person would understand those words to have conveyed a request to revoke consent.

And the last sentence removes the most common workaround. Callers or senders may not designate an exclusive means to request revocation of consent.

Ten business days, and what happens if replies are not possible

Two operational rules follow from the revocation provision.

All requests to revoke prior express consent or prior express written consent, made in any reasonable manner, must be honored within a reasonable time not to exceed ten business days from receipt.

The other rule covers one-way messaging, which is common with automated shortcodes.

Say a text initiator chooses a texting protocol that does not allow reply texts. It must then provide a clear and conspicuous disclosure on each text that two-way texting is not available due to technical limitations of the protocol.

And it must clearly and conspicuously provide, on each text, reasonable alternative ways to revoke consent.

Each text. Not the first one, not the welcome message, not a link in a footer somewhere.

The list a company has to keep about you

Separate from consent, a company making telemarketing calls to a residential subscriber has to run an internal do-not-call program with defined minimum standards.

A written policy for maintaining a do-not-call list, available upon demand. That phrase means you can ask for it.

Training. Personnel engaged in any aspect of telemarketing must be informed and trained in the existence and use of the list.

Recording at the moment of the request. On receiving a request not to receive calls, the entity must record it and place the subscriber's name, if provided, and telephone number on the list at the time the request is made.

A deadline that matches the revocation one. The request must be honored within a reasonable time not exceeding ten business days from receipt.

A duration most people underestimate. A do-not-call request must be honored for five years from the time the request is made.

And a liability rule. If requests are recorded or maintained by a party other than the entity on whose behalf the call is made, that entity is liable for any failure to honor the request.

Who has to say who they are

Identification is its own requirement, and it names what has to be said.

An entity making a telemarketing call must provide the called party with the name of the individual caller. It must also give the name of the person or entity on whose behalf the call is being made, and a telephone number or address at which that entity may be contacted.

The number cannot be an expensive one. It may not be a 900 number or any other number for which charges exceed local or long distance transmission charges.

Prerecorded messages carry their own version. At the beginning of the message, the identity of the business responsible for initiating the call must be stated clearly. Where a business is responsible, that means the name under which it is registered to conduct business with the state corporation commission or comparable regulatory authority.

That is a specific and checkable thing. The registered legal name, not the brand.

During or after the message, the telephone number of that business must be stated, and for telemarketing messages to residential subscribers it must permit anyone to make a do-not-call request during regular business hours.

Your opt-out does not automatically travel, and neither does your consent

Two provisions govern how far a request or a relationship reaches, and they cut in opposite directions.

In the absence of a specific request to the contrary, a residential subscriber's do-not-call request applies to the particular entity making the call, or on whose behalf it is made. It does not apply to affiliated entities, unless the consumer reasonably would expect them to be included given the identification of the caller and the product being advertised.

Running the other way, sharing your opt-out is itself gated. An entity must obtain a consumer's prior express permission before sharing or forwarding the request not to be called. That applies to any party other than the entity on whose behalf the call is made, or an affiliated entity.

The established business relationship exemption has its own reach, defined by two clocks. A relationship formed by voluntary two-way communication. It rests on a purchase or transaction within the eighteen months immediately preceding the call, or on an inquiry or application about the entity's products or services within the three months immediately preceding it.

And that exemption can be switched off by you. A subscriber's seller-specific do-not-call request terminates an established business relationship for purposes of telemarketing and telephone solicitation even if the subscriber continues to do business with the seller.

The health care carve-out, and what it does not cover

Two places in this section treat health messages differently, and both are narrower than they sound.

The first sits in the prohibition on autodialed or prerecorded advertising calls to cell numbers and certain other lines. An exception exists for a call that delivers a health care message. It has to be made by, or on behalf of, a covered entity or its business associate, as those terms are defined in the federal health privacy rule.

A second appears among the residential-line exemptions, with a numeric cap. A health care message from a covered entity or business associate requires no prior express written consent, subject to a cap. The caller makes no more than one call per day to each patient's residential line, up to a maximum of three calls combined per week, and honors the called party's opt-out request.

Two limits are worth reading into that. It turns on being a covered entity or business associate under the health privacy rule, which is a status, not a subject matter.

And it is written about a health care message. A promotional offer is not converted into one by arriving from a company that also provides care.

Nothing here decides how that line falls for any particular message. It describes the exception as the regulation words it.

What to do with a text you did not ask for

The provisions above turn into a short, practical sequence.

Reply with one of the seven named words if replies are possible. Those are reasonable per se, and the regulation says consent is then definitively revoked.

If the message says replies are not possible, look for the alternative route it is required to give you on each text.

Note the date. The honoring deadline is a reasonable time not to exceed ten business days from receipt.

Ask for the written do-not-call policy. The regulation says it must be available upon demand.

And separate the two questions when you complain. Whether they had consent, and whether they honored a revocation, are different failures with different evidence.

What this page does not tell you

Three boundaries, stated where you can see them.

Everything above is drawn from the text of one federal regulation on delivery restrictions for calls and texts. No company is named and no message anybody received was examined.

The section also contains extensive provisions about unsolicited facsimile advertisements. They are irrelevant here and are deliberately not described.

And this is telephone and text law only. Marketing email is governed by a different statute and rule with different requirements, and what a company may do with health information about you sits under a separate framework again.