TCPA Regulations Will Be Effective October 16, 2013.

/0 Comments/in /by

The 1991 Telephone Consumer Protection Act (TCPA) prevents consumers from receiving unwanted calls, voice messages, text messages, and other types of telephone communication. As October 16 approaches, the TCPA’s new rules will be taking effect. Now there is a required written consent from customers for texts made to cell phone for solicitation. For informational texts and other non-solicitation texts, the existing “prior express consent” standard will continue to suffice. For example, the new rule does not apply to purely informational or transactional calls or messages, such as sending a link to a web site, flight updates, surveys, or bank account fraud alerts. However, an informational text that includes an up sell – such as a flight update followed by an offer inviting the consumer to upgrade to first class – would require written consent. There is limited guidance on what constitutes a solicitation, but to paraphrase the Federal Communications Commission (FCC), “If the text, notwithstanding its free offer or other information, is intended to offer property, goods, or services for sale in the text, or in the future, that text is an advertisement.” We will review the newTCPA regulations for you here and tell you why this is so important.

imgres1

So What Does This Mean?

Consumer consent must be explicit, meaning that the consumer must receive a “clear and conspicuous disclosure” that they will receive future calls that deliverer autodialed and pre-recorded telemarketing messages on behalf of a specific advertiser. Their consent is not a condition of purchase, and they must designate a phone number at which to be reached. Limited exceptions apply to this requirement, such as calls, texts from the consumer’s cellular carrier, debt collectors, and schools.

Providers of text message programs are advised to look at the content of their programs and determine whether they are sending messages for solicitation purposes. If they are sending text messages for solicitation purposes, then they must meet the “prior express written consent” standard. The revised rule defines “prior express written consent” as a signed written agreement that clearly and conspicuously discloses to the consumer that:

• By signing the agreement, he or she authorizes the seller to deliver, to a designated phone number using an automatic telephone dialing system, telemarketing text messages; and

 •The consumer is not required to sign the agreement or agree to enter into it as a condition of purchasing any property, goods, or services.

The required signature may be obtained in compliance with the E-SIGN Act, including via an e-mail, website form, text message, telephone key press, or voice recording.

If the provider is sending solicitation messages, they will only be protected if they obtain opt-in with a full signature (in compliance with the E-SIGN Act) with the clear disclosures above. The FCC defines clear and conspicuous as “apparent to the reasonable consumer, separate and distinguishable from the advertising copy or other.”

imgres

To restate, starting October 16 advertisers need to responsibly obtain written signatures before they can make telemarketing calls and texts to consumers. Having a prior relationship with a customer has no bearing on this obligation. Under no circumstances can making a purchase be contingent upon giving consent. If not, class action suits can be filled over violations of the TCPA; fines can range from $500.00 to $1,500 per unsolicited call or text. A class action suit filed against DirecTV alleged that the company contacted customer’s cell phones using pre-recorded messages to offer them satellite television services. Bank of America also faced six class action suits under similar allegations earlier this year. Bank of America proposed a $32 million settlement to end the complaints.

These new TCPA regulations will help ensure that consumers continue to feel positive about receiving these messages from marketers. It is your job as an SMS marketer to make sure you are compliant with these new regulations, or you will suffer terrible consequences.

Mobile Marketers Still Not TCPA Compliant As Deadline Draws Near

/0 Comments/in , , , /by

With the new Telephone and Consumer Protection Act (TCPA) guidelines going into effect starting October 16th, 2013, several mobile marketers and SMS marketers are still not TCPA compliant. If you are not TCPA compliant by October 16th, you could be facing fines upwards of $1500 per unsolicited text. This means if you have not implemented an auditable consent for all of your customers in your mobile database, you are at risk of being fined by the TCPA.

compliance

A recent review of 50 brands found that hardly any of them are TCPA compliant. They are compliant with the old guidelines, but they will still be exposing themselves to possible fines if they do not compile written consent from everyone in their exisiting opt-in database. To be more specific, if you currently have an existing database, you need to somehow get all of your subscribers to re-opt in to your database with written proof that they have read and agreed to the new TCPA disclaimer terms.

An important thing to note about the new guidelines is that they are applied retroactively. This means that if you do not have written consent from members of your existing database by October 16th, you can no longer continue to message those individuals legally. Excuses aren’t going to fly either since this deadline was announced over a year ago. Get compliant or get sued! It’s as simple as that.

Considering recent TCPA lawsuits have risen by 60% over the past year, we would advise you to immediately set the wheels in motion for compliance or you will be risking not only non-compliance, but exposing yourself and your company to significant legal action. Do the math; if you have thousands of people in your mobile database, and you illegally text all of them, that means you will be fined around $1500 per text. This can only mean a financial and legal disaster that could very well put any mobile marketing agency under. DON’T RISK IT!!!

How To Get Written Proof

If you are not currently compliant, read the following very closely. You can obtain the required written signature from your customers in a number of ways. You can get it through email, through a website form, a text message, a telephone key press, or through a voice recording. You will have to change your calls-to-action on anything related to your mobile marketing program to include the necessary language as required by the TCPA. The customers need to read and agree, in written form, to receive SMS messages from a particular brand on the mobile number they’ve provided. They also need to provide written proof that they understand that they are NOT required to give their consent as a condition of purchasing services or products. This needs to be clearly and concisely communicated through ALL calls-to-action. This includes any media promoting the mobile marketing campaign along with the SMS opt-in flow on your customers’ phones. You will also have to include a prompt to your customers to reply “Yes” to confirm that they understood all of this.

naa_001

For MMS, only one message will be required, however, with SMS, you may have to use 2 or more text messages to get all the information across. The bottom line is that ALL OF THE INFORMATION NEEDS TO BE IN THE MESSAGE.

Additional Important Information

Note that any non-marketing related messages do not apply to this new rule. One-time transactions, along the lines of texting a keyword to a short code to receive a coupon, with no further messages, are also excluded from the new rule. Of course, if you are a marketer that already gathers express written consent from your subscribers, you should already be in good shape. However, if you are a smaller company that doesn’t pay particular mind to the rules, or even worse, you spam people, we can guarantee you that you are not currently TCPA compliant. If you are not compliant, you have about two weeks to get compliant, so we would advise you to not waste time on this. Yours and your company’s future could depend on it.

Text Message Regulation | Carrier Compliance & TCPA Laws Regarding SMS

/0 Comments/in , , , , , , /by

youcancant

In light of the recent string of lawsuits surfacing as a result of the Telephone Consumer Protection Act (TCPA), shockwaves have been sent throughout the mobile marketing industry. Companies such as 20th Century Fox, Selling Source, Jiffy Lube, and most notably Papa John’s, have gotten in trouble with the law because of unsolicited SMS text messages. In fact, Papa John’s alone faces a $250 million class-action lawsuit for sending 500 thousand unwanted text messages to customers in early 2010. Jiffy Lube also just settled a $47 million lawsuit for sending text message spam to millions of consumers who had not consented to receiving the messages. The message from the FCC has been made clear; if you do not get written consent from your consumers, get permission through an esign app online, or get permission through a consumer contacting you first, you cannot text or contact them, period. If you do, your company will end up on the growing list of companies being taken to court for violating the FCC’s and TCPA’s rules.

The TCPA, passed by Congress and signed into law by President H. W. Bush in 1991, was initially designed to prevent automatic telephone dialing systems (ATDs) from spamming people’s telephones with unwanted calls. Most of you would refer to this as “telemarketing.” However, things have obviously changed since then with the rise of text messaging as a primary medium of communication and interaction among people. So now, after a ruling on the subject in Chicago, the TCPA applies to “text calls”, or as we know them, text messages. This means the days of sending bulk SMS text messages to databases of clients are over. You need to be smarter than that now.

A lot of companies for a long time did practice sending out text messages to invite their customers to opt-in using EBR (Existing Business Relationship). EBR was an exemption that stated that a business could contact a customer on their mobile phone as long as they had an existing business relationship. An existing business relationship is defined as “a customer giving you their mobile number in the last 90 days” while existing customers in last 180 days could be called or messaged. However, in February of 2012, the FCC amended the TCPA rule and eliminated the EBR completely. They also added SMS to the law, and this all still stands to this day.

Not only do you need to be aware of the TCPA law, but carriers like AT&T and Verizon have hired auditing companies that actively seek violations of the Mobile Marketing Association’s Best Practices including websites, social media, television, commercials, billboards, magazine ads, etc. Theses companies do nothing but try to find violations, so if your site is violating the Mobile Marketing Association’s Best Practices/Disclaimers, your short code could be disonnected from the servers.

Despite all of this, there are still ways to use SMS text messaging and your website to advertise to current and potential clients while still remaining compliant. We already know that you can’t text, call, or email any possible customers without their express written consent. So to get this consent, you can do one of three things. You can get their written consent on a piece of paper, you can get permission through an esign app online (electronic signature), or you can get permission through the consumer texting you first or calling you first. The best way to get consumers to contact you first is through a Call-To-Action (CTA).

CTAs are usually placed in highly visible places on your website, usually after blogs, on the homepage, or on anything else that a customer might want to contact you with questions about. You need to be aware of the TCPA’s rule on CTAs though. CTAs must claim that standard text messaging rates may apply, and that customers can unsubscribe at any time by replying STOP. Any other form will result in a violation. Remember, Anchor Mobile will help you be compliant.

The writing has been written on the wall; companies and businesses are going to have to adapt to the FCC’s and TCPA’s rules and regulations if they want to stay out of court. If you want to stay on the forefront of mobile marketing you need to adhere to this rules and regulations and be aware of any possible changes down the road. If you don’t, you could end up costing your company millions of dollars in lawsuit and settlement fees.