SMS Marketing Regulation & Guidelines
Email marketers will likely feel a bit of déjà vu here but at the risk of sounding like an echo I’m going to say it.
The Wild West days are nearing an end for SMS marketers.
In particular I’m referring to rules, best practices, etc. that exist and are evolving due to the increasingly popular practice of using SMS as a marketing medium.
For those who are not already utilizing SMS messages for marketing purposes I’ll start at the beginning.
There are many ways that SMS might fit into your marketing strategies. One way that is gaining momentum is to use it for list management. Owners of databases of consumer or business opt-ins know what I’m referring to but if you’re not familiar with list management it simply means that through some activity, either purchasing lists or building them via interaction with consumers or businesses, a marketer has the permission to contact those in the list with advertisements. Email and postal mail traditionally have dominated this part of our industry but with its amazing ability to reach people in real time SMS has all the makings of a new king of the hill. It is important to note though that buying mobile phone number opt-in lists is not permitted since permission contained within the opt in cannot be transferred one from party to another. For list management that involves multiple parties sending advertisements to the opt-in list it’s necessary to do your homework ahead of time to ensure that each party will be messaging compliantly. A good rule to follow is what works for email does not necessarily work for SMS in terms of compliant uses of an opt-in database.
Once you have a compliant opt-in list of mobile phone recipients, other popular uses for SMS in marketing include sending one time messages, subscriber content, or alerts. Recurring messages sent to subscribers may be based either on a paid subscription or a free subscription. The differences between these marketing practices and those of the list management sector of SMS are numerous and important in terms of the relationship each has with the current best practices, specific carrier restrictions, and laws. The point at which disclosures are made to the mobile phone owner and the manner in which opt out policies are shared are the same in most cases but other specific requirements vary too much to cover here.
In order to gain better insight into the laws and best practices already being applied to commercial uses of SMS I spoke with Richard Newman of the law practice Hinch Newman LLP, an Internet attorney with a great deal of experience in privacy law and Michael Becker, Managing Director, North America at the Mobile Marketing Association (MMA). Of course it’s understood that these conversations were a courtesy and no professional advice is being offered by either Richard or Michael. Now that that’s out of the way let’s move right along.
For anyone not familiar with the MMA, their goal is to help foster growth in mobile marketing while informing marketers of every manner of important aspects of the space including best practices for SMS marketing. I asked Michael the obvious question first, that being which approach is best to opt a mobile phone number in to a list of SMS message recipients. His response was clear and concise. Whether the opt in is initiated by phone or on the Internet you must have a text message from the mobile phone confirming consent. This affirmation from the mobile phone owner is a requirement, not an option if you wish to be compliant with best practices. Michael went on to tell me that all of the mobile carriers are auditing SMS programs regularly so abuses will not likely go unnoticed for long. He also pointed out that opt ins for SMS are covered by more than just the MMA’s best practices. Prior permission to contact a mobile phone is also effectively covered by CAN-SPAM.
Finally I asked him to summarize the MMA’s position. “It’s very important that the marketer get an opt-in from the mobile device and respect the consumer’s personal space. The MMA has put in place best practices to assist marketers in doing just that. Many brand marketers who are doing this and have a clear strategy are seeing great success with their opt-in rates. One thing we need to realize is that mobile is different than other mediums in that it’s potentially comprised of eight different engagement media the phone user may consume and is a big part of the decision making process for consumers. What is needed for future growth and sustainability of the channel is education.”
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Though some of the material presented might apply more for marketers who are running branded SMS campaigns you never know what the list management crowd could pick up from it.
In tackling more of the legal aspects of opting mobile phone numbers into text messaging databases Richard Newman was extremely helpful. Here’s what Richard had to say:
Regulatory agencies are actively monitoring the mobile marketing environment and there are numerous, seemingly fragmented, industry standards (MMA, DMA, CTIA, etc.). Various state and federal statutes/regulations apply to mobile marketing including the Telephone Consumer Protection Act, the FTC Act, the Telemarketing Sales Rule and Do Not Call List, and CAN-SPAM. Focusing on the TCPA, it is an opt-in only regime and prohibits marketers from utilizing automated telephone dialers to make calls and/or send messages to wireless devices unless prior express consent is obtained. A text message is considered a call under the TCPA. Opt-in consent is obtained by providing clear and conspicuous disclosures about how to consent and that by consenting, the recipient agrees to receive text messages from the sender. Disclosure that the recipient may be charged by his carrier for receiving messages is also necessary, as is disclosure of additional charges or fees. Consent may not be obtained via negative option. Recent court opinions regarding the TCPA have included that the TCPA applies whether a text is sent to internet-to-phone or phone-to-phone, and that a consumer need not incur data charges in order to maintain a claim. In 2008, Timberland and GSI Commerce settled TCPA class action claims for $7 million, based upon unsolicited wireless text messages. SMS advertising is not regulated by any specific state law. However, general false advertising and unfair and deceptive trade practice statutes do apply.
The costs of violating the TCPA are significant and the Florida AG has been very active in enforcing the proper disclosure of material terms, including settlements with Verizon and Sprint.
What all of this appears to boil down to is that SMS marketing from a legal and best practices standpoint is pretty defined already. But from my perspective, having been an SMS list manager, the real challenge for marketers new to the space is in understanding precisely what is OK in terms of the marketing practices used after the opt-in and what is permitted in terms of the identity of the text message sender or senders. It’s most cloudy when you look at it from the perspective of a list manager since there are subtle elements to consider such as who actually can exercise the rights contained under the permission from the mobile phone owner. If your company is serious about entering this growing space or maintaining a presence in it then it’s absolutely necessary that you seek guidance on a regular basis from those who are at the forefront of defining best practices and also those professionals engaged in defending companies whose rights to market via text messaging have been challenged in court.
If you should wish to contact Richard Newman for this type of advice you may contact him via the Hinch Newman LLP website. You can also reach Michael Becker at the MMA via email at Michael.email@example.com.