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TCPA Amendment Now Requiring “Written Consent” for SMS Marketing. Are you Ready?

There are new changes to the Telephone Consumer Protection Act (“TCPA”) that go into effect as of October 16th, 2013. These changes directly impact your mobile marketing initiatives. The new changes require you to obtain “prior express written consent” from your existing and new contacts before you can engage in any type of ongoing marketing related text messages to them after the 10/16 deadline. This will require you to send a TCPA consent request to SOME or ALL of your existing contacts asking them to re-opt in. Only those that reply “YES” will be able to receive future marketing text messages from you.

“The TCPA makes it unlawful for a person to “initiate” a telephone call to a residential line and to wireless numbers for non-emergency purposes without the prior express written consent of the called party. The TCPA applies to both voice and short message service (SMS) text messages, if they are transmitted for marketing purposes.

The new TCPA guidelines DO NOT apply to non-marketing communication such as appointment reminders, service reminders, employee communication, etc. Failure to comply with the new TCPA guidelines may result in penalties of $500-$1,500 per non-compliant text message.

As a result, we have implemented special system features to ensure that mobile efforts of ClearLine customers are compliant with the new TCPA changes.

Please read information below to get details and examples, and expert opinion on the subject.

What do you have to do to comply with the new rule.:
The new rules require marketers to:

1.  Obtain prior express written consent before sending SMS/text marketing messages. Consent must be unambiguous, meaning:

  • the consumer must receive a clear and conspicuous disclosure that he/she will receive future text messages on behalf of a specific marketer; and
  • his/her consent is not a condition of purchase; and
  • he/she much designate a phone number to which messages will be delivered (which should not be pre-populated by the marketer in an online form).

2.  Obtain express written consent, even if you had a prior business relationship with the consumer. Therefore, for example, phone numbers gathered at the point of purchase without express written consent for SMS opt-in are not approved for ongoing promotional use. The prior business relationship exception under the TCPA no longer applies.

How is “consent” defined?
The FCC has determined that written agreements obtained in compliance with the E-SIGN Act will satisfy the requirements of the rule, such as, for example, agreements obtained via text message, website form, and other valid forms (see FCC link for more info:

Are any types of messages excepted from these regulations?
All marketing messages are required to comply with these express written consent regulations. Some small exceptions exist, including messages sent by schools, cellular carriers, and healthcare-related messages. Purely transactional messages (e.g. account alerts, travel updates, shipping notifications, etc.) are also exempt so long that they do not include any promotional content.

What You Must Do to Comply:
If you don’t have express written consent for all, or some, consumers on your marketing list—or you’re not sure—you will need to re-opt-in those numbers before October 16, 2013. Example one-time campaign: “[Company] would like to continue to send you SMS @ this number. X/week. HELP for help. STOP to end. Msg&data rates may apply. Reply KEYWORD to confirm today.”

Remove any pre-population of phone numbers on any online web form collecting consent for sending SMS marketing messages (the consumer must enter his/her phone number into the form in order to comply).

In compliance with ClearLine Mobile best practices and guidelines (in addition to contractual obligations), confirm that all phone numbers used for promotional SMS/text have been collected with express written consent.

visit DMA (Direct Marketing Association) website for more details
visit MMA (Mobile Marketing Association) website for more details

Many marketers unprepared as deadline looms for new SMS guidelines

Written consent required for SMS marketing

Marketers who do not have prior written consent from consumers to send them marketing messages via SMS will potentially face fines of up to $1,500 per unsolicited message starting Oct. 16 under new guidelines.

The new Telephone Consumer Protection Act guidelines going into effect next month require written, auditable consent for every consumer in a mobile database whereas previously consent could be express, meaning a company had previously done business with an individual. For those marketers not already using written consent for their opt-in programs, the new guidelines will require a significant change in how they structure their programs.

“We did a review of 50 brands and found that they are compliant on the old guidelines, but almost no one is TCPA-compliant, given the new requirements going into affect on October 16,” said Michael Ahearn, vice president of customer development and marketing at Archer USA, San Jose, CA.

“The most important thing is that everyone who has an SMS/MMS program already, the database that they have has to be reviewed and have those members of the mobile database re opt-in,” he said. “The brand needs to capture that written consent from their existing opt-in database.”

Written proof
The new guidelines impact every new opt-in that a marketer acquires as well as all of the existing names in their databases.

For marketers who have not been collecting written opt-ins previously, this means they need to get their existing database members to re-opt-in to their programs with written proof that the consumer has read and agreed to the TCPA disclaimer terms.

The guidelines are retroactive, meaning that after Oct. 16, if marketers do not have written consent from someone already in their mobile database, they can no longer message that consumer legally. The guidelines were announced over a year ago, with the deadline for implementation set for October 16th of 2013.

Marketers that do not have the required written consent will be exposed to potential legal action.

Legal actions
With the number of lawsuits on the rise brought by consumers against marketers for potentially illegal messaging, this points to the need for marketers to ensure that their SMS programs meet the new guidelines.

“There has been a significant upswing in the litigation with people chasing brands with class action suits over unlawful communication,” Mr. Ahearn said.

“We have seen TCPA law suits increase 60 percent overall in 2012,” he said. “One large apparel chain and two QSRs have had tens of millions of dollars in fines for non-compliant messaging to consumers on their phones.

“The people you don’t have written consent for, those will basically be illegal messages and they will be liable to fines of anywhere between $500 and $1,500 per message for non-compliant messages. If you’ve got 500,000 people and you multiply that by several hundred dollars per message and you can see where it becomes a very critical issue.”

The required language could span two SMS messages.

Recording consent
To be compliant, marketers need to adjust all of their calls-to-action for their mobile messaging programs so that they include the necessary TCPA language.

The required written signature can be obtained via email, Web site form, text message, telephone key press or voice recording.

To be compliant, marketers need to ensure that consumers read and agree, in writing, to receive marketing text messages from a specific brand to the mobile number provided and that they understand they are not required to provide their consent as a condition of purchasing any goods or services.

This language must be clearly and conspicuously displayed in all calls to action in any media promoting the program as well as in the SMS opt-in flow on the phone and include a request to consumers to reply “Yes” to confirm.

For SMS, it may require marketers to send two separate messages to get all the necessary language in front on of users. For MMS, only one message would be required.

“The actual flow in the SMS or MMS would need to, in most cases, require that language to be there, have the end user see that language, then reply with a ‘Yes’ reply message indicating that they have seen and agreed to the language,” Mr. Ahearn said. “This is an excellent way to record the consent and have it available for audit against the phone number.”

Opt-out challenges
Non-marketing messages such as flight updates and bank or account balances are excluded from the guidelines.

Also excluded are one-time transactions such as texting a keyword to a common short code to receive a coupon, which is delivered via a code in the responding SMS message, with no further messages sent.

The impact of the new guidelines is mitigated by the fact that CTIA regulations already cover prior express written consent, which many marketers already follow. Any legitimate marketer already gathers express written consent before engaging a consumer with text messages. Some smaller companies, or less reputable or ‘spammy’ marketing shops, might not know or care about the new rules.

The challenge with the new regulations for mobile marketers relates to opt-outs.. The opt-out requirement is the trickiest new regulation. The language seems to apply to calls. But the TCPA applies to mobile messages as well. So does the requirement to post opt-out options apply to each text message? Do marketers have to put these opt-out messages at the beginning of every text?

Consumer focus
Keep a close eye for guidance from government and industry on this regulation. For the time being, the company recommends including opt-out wording in at least one message per month for each text-message campaign, per current industry rules.

With SMS marketing an important way to reach mobile users, the new guidelines could help ensure that consumers continue to feel positive about receiving these messages from marketers.

The TCPA changes further illustrate the need for marketers to remain consumer-focused, protecting privacy laws and adhering to proper messaging tactics. The new rules are another welcome step in regulating the messaging industry and helping to maintain the integrity of the medium, as a whole.

SMS/MMS remain one of the most important components in a strong mobile strategy, and compliance builds a strong foundation for a successful long-term engagement with consumers.

Final Take
Chantal Tode is associate editor on Mobile Marketer, New York

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