Some call it questionable advertising. Others call it marketing to children. But wherever they stand on Mobile Messenger's business model, most agree it pushes the limits of what should be acceptable practice.
What, you've never heard of the company? That's probably because the Australia-based mobile content seller only recently entered the U.S. market. But it's entered with a vengeance, quickly becoming the top online advertiser here in terms of raw sponsored link impressions through its affiliates, according to Nielsen Online figures for October.
Mobile and Web marketing watchers say Mobile Messenger deploys questionable marketing practices in online ads and landing pages to get young mobile phone users to sign up for expensive mobile horoscopes, "flirting tips," and other content services that are billed through their carriers. The service can cost anywhere from $9.99 per month to $5.99 a week, depending on the carrier.
It does this by leveraging a network of affiliate partners who run ads and host Web sites on its behalf. WhoHasaCrushOnYou.com, UrFortuneRevealed.com, WishforSanta.com and dozens like it appear to offer one service and actually deliver another -- that is, if the outraged Internet postings of hordes of young mobile subscribers and their parents are any indication.
"OMG! I am only 13 and I got in so much trouble when my parents got the cell phone bill," wrote one of the victims, Brittany, commenting on a blog post about Mobile Messenger's services. "Whoever made this should be sued! Is it even legal?"
The answer to Brittany's question is no, according to the Florida Attorney General's office. Michael Palecki, Tallahassee bureau chief for the Florida AG, told ClickZ the office believes Mobile Messenger is in violation of Florida laws covering misleading marketing practice.
"We're familiar with Mobile Messenger," Palecki said. "They are on our radar screen. Any company that uses deceptive advertising with young people... will be targeted. We believe the advertising they are doing is in violation of Florida law." He wouldn't say whether his office is investigating this company.
The Federal Trade Commission (FTC) also specifies disclosures about the terms of an offer must be clear and conspicuous. Several ClickZ sources familiar with the company's practices said Mobile Messenger's offers don't pass a gut check for that requirement.
In ads purchased by the millions from MySpace, Mobile Messenger and its affiliates make pitches such as, "Your Crush's Name Is... Click the button!" and "When Will You Die?" and "Who Will U Marry? Click here to find out." When they click, users are taken to a landing page offering a fun and colorful quiz, where people enter their name, age, and astrological sign before being asked to provide a cell phone number. By entering a PIN number sent to their mobile device from the Web site, the user promises to pay as much as $5.99 per week through their carrier bill.
Problem is, the billing disclosures on many of Mobile Messenger's sites are in the fine print.
In some cases they appear in a tiny font relative to the site's promotional copy, which makes no mention of cost. In other cases, they appear in tan text against a brown background, or in rose against a pink background. Occasionally, the billing information loads several seconds after the promotional copy, letting users respond to the pitch before learning its cost.
"There's certainly an element of misdirection here," said Eric Goldman, an attorney and a professor at Santa Clara University School of Law. "You can't make up that someone has a crush on you and sell access to that if there's nothing behind it, if it's all make believe."
Lately the company has added a new, holiday-themed twist to its marketing ploy. A recently created landing page at WishforSanta.com displays a warm Christmas scene, complete with glowing hearth, stockings, wrapped gifts, and Tannenbaum. Visitors are asked to specify whether they are a "boy" or "girl." Multiple sources concurred the page could be construed as a bid to reach those under 13, in violation of child marketing regulations.
An MMA member, Mobile Messenger declined an interview request, but did issue a statement.
"As a company Mobile Messenger and its clients adhere to the regulations set by the Mobile Marketing Association and all carriers across the US," it said in part. "The business model operated within the US for premium cell phone services is a highly regulated industry. Consumers must double opt-in, meaning they must verify they are the owner of the device and are accepting the chargers."
Yet while the company requires people to verify they own a mobile device, the Mobile Marketing Association's (MMA) requirements go further than that, insisting any promotional offer must "clearly indicate whether the service is a subscription." Many sites run by Mobile Messenger and its partners don't do that.
Additionally, the MMA just updated its guidelines to add an affiliate marketing clause that states "jump pages and landing pages must be controlled and managed by the applicable content provider."
"Affiliate marketing has been a problem," MMA CEO Laura Marriott told ClickZ.
Mobile Messenger's MMA membership remains in good standing and the company has sponsored some of the group's events. However, Marriott said she was unaware of many of the sites such as those listed above that have been advertised so heavily online.
MySpace, which has sold a vast quantity of ads to Mobile Messenger and its affiliates, declined to comment for this story. However a source familiar with the situation suggested executives are well aware of the vast number -- and misleading nature -- of the ads they've sold to the company and its affiliates. According to the source, ad placements on MySpace generated approximately 50 percent of Mobile Messenger revenue as of last week.
Other sources of inventory have included Google AdWords and Yahoo Search Marketing, although the source said Google has already blocked the ads. Additionally, this individual added Mobile Messenger has already determined its days advertising on MySpace may be numbered.
As of December 14, MySpace continued to sell large volumes of remnant inventory to Mobile Messenger partners. Those affiliates include firms like Tatto Media, Incentaclick, and AdAxiom, firms that host landing pages or redirects to pages with Mobile Messenger promotions. Without MySpace's willingness to sell bulk ads to them, Mobile Messenger would have a very hard time netting customers, Jupiter Research analyst Emily Riley said.
The Florida AG now says it's begun to investigate Web sites that play host to misleading and deceptive ads, as well as other stakeholders such as mobile carriers, affiliate networks and billing aggregators.
The AG is waging an ongoing campaign against what it views as deceptively marketed mobile content services, having recently won a $1 million "contribution" from AzoogleAds, and slapped ringtones marketer Buongiorno USA with a lawsuit.
"We want Web sites to know they're not going to be immune," said Bureau Chief Palecki. "They will be next. We hope that some of these Web sites will start to look at the ads they're putting on those sites and will tell those entities that are fraudulently advertising that they're not welcome."This story has been updated to reflect that the reported Nielsen AdRelevance data from October covers sponsored link impressions, not all impressions.
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Until March 2012, Zach Rodgers was managing editor of ClickZ's award-winning coverage of news and trends in digital marketing. He reported on the rise of web companies, data markets, ad technologies, and government Internet policy, among other subjects.
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