CTIA Guidelines impose limitations on the ability of merchants to collect consent for more than one brand at a time. Under those Guidelines, “[e]nrolling a Consumer in multiple Short Code Programs based on a single opt-in is prohibited.
Therefore, when brands collaborate on list growth activities it is necessary for them to give consumers a choice in which brands they will receive marketing texts from. The following items are required in order to compliantly collect SMS across multiple brands:
The disclosure seeking consent must be “clear and conspicuous” so the notice is apparent to a reasonable consumer.
The webpage must obtain express consent separately for each brand that is going to send text messages to the subscriber.
If multiple brands are collaborating to obtain consent, not only must the consumer be given the opportunity to select which brand or brands they will receive text messages from, but they must also be presented with each brands terms and conditions and privacy policy at the time that they are asked to make that selection (per the CTIA).
Consent must comply with the ESign Act, which governs electronic signatures under federal law. Importantly, signatures can include “an electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record.”
For purposes of text message opt-in, checking a box, entering a one-time passcode, or replying “Y” are the types of symbols or processes that are associated with agreeing to receive text messages.
Checkboxes or other selectors on the form must default to unchecked or off. Prechecked boxes that enroll users in SMS programs by default are not permitted.
A valid multi-brand consent request may look something like this:
Record Keeping
It is essential that brands who collaborate on list growth maintain adequate records that are able to prove that an individual gave their consent to that brand. Such records should be sufficient to establish which checkboxes an individual selected when they completed their submission. Simply providing a copy of the form without supporting records to establish the individual’s choices will not be sufficient to avoid liability.
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