In December 2023, the Federal Communications Commission (“FCC”) voted to adopt a new “one-to-one” consent requirement for telemarketing texts and autodialed phone calls. While the goal of this change is "to protect consumers from unwanted and illegal text messages and calls", the Order may impact ecommerce brands that collaborate with other companies for joint list growth initiatives, including joint giveaways or contests. This new regulation takes effect on January 27, 2025.

This article will guide you through how to compliantly collect consent across multiple brands.

What's Changing

This requirement states that a brand sending an SMS marketing campaign must have obtained a consumer’s prior express written consent that is specific to the brand – in other words, a 1:1 consent. To obtain valid 1:1 consent, a texter/caller cannot rely on a bundled consent applicable to multiple sellers.

According to the Order, brands can provide additional information about other sellers or a list of sellers that site visitors can affirmatively select in order to be contacted.

Compliantly Collect Consent Across Multiple Brands

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.

• The brands “must be logically and topically related." The FCC does not define what ​“logically and topically” means in this context, but explains that ​“when in doubt,” businesses should “err on the side of limiting that consent to what consumers would clearly expect.”

It's important to note that the FCC’s Order does not limit the number of brands that can be presented to a consumer for potential opt-in at a particular time, but the FCC did make clear that a “hyperlinked” list approach to identifying sellers is unacceptable.

It may be helpful to consult legal counsel familiar with the TCPA before attempting to collect consent for more than one brand. If you think you may need legal counsel familiar with the TCPA, please contact us.