Written Consent Required for SMS by October

An updated ruling by the FCC, which goes into effect October 16, 2013, has received virtually no attention from mobile marketers, although it affects us all. It’s a good time to get input from your legal advisors, as well as anyone involved in promoting your SMS program. I will provide a broad-brush outline and point you to some resources, but this is not legal advice.

The ruling is an update to the 1991 Telephone Consumer Protection Act; an effort to bring it into alignment with the FTC’s Telemarketing Sales Rule, part of the Do-Not-Call Implementation Act. If you had any doubts about the place of text messages along the Advertising Aggravation Continuum, this supports my view. Text messages are personal and intrusive, so they must be of such high value that customers request them. (Here are some examples of on-demand marketing.)

The ruling classifies text messages with auto-dialed “telemarketing robocalls,” and requires “prior express written consent” from the recipient. This consent can take the form of an “email, website form, text message, telephone key press, or voice recording.”

The agreement must be a “clear and conspicuous disclosure” that providing a phone number will result in message delivery by a specific seller. That seller bears the burden of “proving that a clear and conspicuous disclosure was provided, and that an unambiguous consent was obtained.” Accepting calls or texts cannot be a requirement for purchase.

There is no exemption for an existing business relationship.

Exemptions are made for purely informational messages: “For instance, bank account balance, credit card fraud alert, package delivery, and school closing information are types of information calls that we do not want to unnecessarily impede.” Non-profit and political messages are also exempt from the rule.

If you have followed the Mobile Marketing Association and CTIA rules and best practices, you should already be in compliance with the FCC rule, but I find violations every day. The MMA Messaging Committee will be reviewing the ruling and making a full recommendation.

The ability to opt out must be provided in every message, but the discussion focuses on calls rather than texts. It may be a good idea to include the “Stop” option in every outgoing text, but we haven’t reached consensus on that as yet.

A lot of organizations are stuck in the chicken-or-egg quandary when it comes to SMS marketing: we don’t have a list because we haven’t developed our program, and we haven’t developed our program because we don’t have a list. I continue to be surprised that more digital marketers, particularly those in retail, aren’t building programs. There is a significant amount of planning required, but once set up, SMS can deliver messages at the speed of retail. There are many great use cases out there, and retail is leading the way, but just barely. Now is the time to build your FTC/FCC/CTIA compliant program so you can deliver “instants of value” to your customers.

Image on home page via Shutterstock.

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