- Posted October 23, 2013 by
Los Angeles, California
This iReport is part of an assignment:
Don’t Delete that Opt In List just yet!
Except possibly getting unsolicited text messages from them.
On Feb. 15, 2012 the FCC amended the Telephone Consumer Protection Act (TCPA) of 1991 to remove any ambiguity surrounding consent requirements for SMS and MMS messaging.
This amendment to the act made it so that an “established business relationship no longer relieves advertisers of prior unambiguous written consent requirement.”
This basically means that just because you gave your cell phone number to company you've done business with that they can send you text messages. Businesses now must get clear, “unambiguous” consent to communicate with you via text.
These changes are finally going into effect 20 months later this week on Oct. 16 and there has been a flurry of activity in the Mobile Marketing community to understand what exactly needs to be done to be compliant.
The problem is – it’s not clear.
All over the country mobile marketers are scrambling to ensure that they follow the law, but there are key points that are causing a good bit of confusion, and one can’t comply with a law 100% if that law is unclear.
There is a current petition on its way to the FCC seeking clarification on these and other questions. And we believe the FCC will respond similarly to their Nov. 30 statement that clarified that MMA-prescribed confirmation messages were not in violation of the TCPA.
The focal point, and the intent of the change, is that the TCPA now makes it mandatory for businesses to receive “prior express written consent” before auto-dialing or texting consumers.
Provided that the ESIGN act is applicable and that electronic signatures and records (opt- ins) are accepted the key changes to the TCPA are:
1. New requirement for prior express written consent to deliver a prerecorded marketing message to a residential landline.
2. “Prior express written consent” will require (1) a clear and conspicuous disclosure that by providing consent, the consumer will receive auto-dialed or prerecorded calls or texts on behalf of a specific seller; and (2) a clear and unambiguous acknowledgment that, having been informed about the consequences of consent, the consumer agrees to receive such calls at the mobile number provided.
3. The consumer’s consent to receive calls cannot be required as a condition of allowing the consumer to make a purchase of any good or service.
4. The caller (content provider for SMS) will bear the burden of establishing, by clear and convincing evidence, that prior express written consent was obtained.
5. No “grandfathering” provision for implied consent i.e. just because you have a business relationship or have been messaging a consumer before Oct. 16, companies will need prior express written consent to send texts or make prerecorded calls.
So what is the controversy?
The FCC’s language raises two important questions.
Legitimate Mobile Marketers have long been compliant with the existing rules of text message marketing – the double opt in - via either handset or web based opt in form.
Via Handset the end user initiates the opt in by manually texting a keyword to opt in to a contact list. The end user is then sent an automated confirmation disclosing the terms of membership (how to opt out, approximately how many messages to expect per month, etc.)
Via a Web Based Opt In Form the end user manually completes and information harvesting form and submits it in order to be added to a communications list. The end user is then sent the same automated confirmation disclosing the terms of membership.
Based on the assumption that the ESIGN Act is applicable this process clearly complies with the spirit of the amended law.
The end user chose to be added to a list (Opt in 1) and was confirmed and instructed how to remove themselves from the list (Opt in 2).
However, the FCC does not address how their new rules apply to content providers who already adhere to these long-standing practices.
This has led to a small faction of Mobile Marketers to interpret the changes to mean that everyone must start over and re-opt in everyone in their opt in lists, essentially undoing any work that has been done to create a legitimate and, up until now, compliant mobile marketing contact database.
This assumption of the most extreme case scenario has led to some very big name corporations to “play it safe” and re opt in their databases.
I personally have received re-confirmation texts from companies like Bed, Bath & Beyond and my neighborhood Chic Fil A.
The fact is that even the most compliant marketers with the most compliant SMS campaign management platforms are likely to be spooked by the uproar, and when you see the big name companies sending out re-confirmation texts, it’s intimidating if you’re the little guy without the $10,000 an hour general council there by your side.
So what should we do?
The short answer is, if you are compliant with the CTIA, http://www.ctia.org/, you are compliant with TCPA. CTIA is “The Wireless Association” and they are the organization that has established the rules that we have all be following: opt ins, confirmation texts, opt out instructions, and terms and condition disclosures, etc.
Those of us that have followed these rules know that the standards set by the CTIA already surpass the new TCPA rules.
There is a world of difference between communicating valuable and desired information to the contacts you have who have directly asked you for information and spamming cell phone numbers harvested with fraudulent pretenses.
The spirit of the TCPA changes are to protect wireless customers from telemarketing and spam SMS messages. The point of the updates to this law is not to cripple the Mobile Marketing Industry.
For example, local marketing platform MobileBizBox, http://www.mobilebizbox.com/, includes an SMS/MMS gateway and with the updates to the law have implemented an automated double opt in process for new sign ups moving forward and is waiting for more clarification before taking drastic measures with their clients existing customer databases.
The Mobile Marketers who have ignored or chose to not follow the CTIA's self-regulatory framework in the past have always been at risk of lawsuits. The CTPAs updates simply strengthen the case against them and will expedite their disappearance from the Mobile Marketing landscape.
The long view of this situation is that the more our customers are protected from the noise of unwanted communications the better they will hear our message when it is delivered to them via an authorized and 100% compliant text message.