Much has been written about the Federal Communication Commission's ("FCC's") recent 138-page Declaratory Ruling and Order that broadened the scope of the Telephone Consumer Protection Act ("TCPA") and will likely encourage even more TCPA lawsuits. One part of the ruling that has received less press, but deserves attention is the FCC's clarification of the prior-express-written-consent rule that became effective on October 16, 2013. In its recent ruling, the FCC acknowledged that the effective date of the prior-express-written-consent rule was unclear. If your company is sending, or causing to be sent, text message advertising or telemarketing messages to consumers relying on consents provided before October 16, 2013, review those consents to ensure compliance with the recent update.

Common questions include:

• If a consumer's consent was obtained before October 16, 2013, is it invalid (even if in writing) if the consent agreement does not meet all of the current requirements?
• Or, must a company seek updated consents from existing consumers to continue to send them text message advertising or telemarketing messages if the existing consent met the standards of the prior rule, but not the revised one?

The FCC answered – Yes; consents received prior to October 16, 2013 that do not meet the new rule must be updated. The FCC also granted a limited waiver for certain petitioners to obtain updated consent.

In order to maintain compliance with the TCPA, review your company's consumer consent forms and work with a Polsinelli attorney to update any out-of-date language. "Old" consents may be required to be updated by the consumer before sending new messages. Relatedly, this ruling is a good opportunity to confirm future consents are obtained by an agreement that complies with the prior-express-written-consent rule.

As a reminder, before sending, or causing to be sent, text message advertising or telemarketing messages to a consumer, a company must first obtain prior-express-written-consent from that consumer. Specifically, the company must have a written agreement that includes:

1. The signature of the person called, which may be in electronic or digital form if it is recognized as valid under federal or state contract law (e.g., the federal E-SIGN Act)
2. Clear authorization for the company to send, or cause to be sent, text message advertisements or telemarketing messages using an automatic telephone dialing system ("ATDS") or artificial prerecorded voice to the person called
3. The telephone number to which the signatory authorizes the text message advertisements or telemarketing messages to be sent
4. A statement that the signatory is not required to give consent (directly or indirectly) as a condition of purchasing any property, goods, or services