If your company is involved in mobile marketing, specifically SMS marketing, chances are you have been hearing about the new TCPA laws that have taken effect.
You, like most people, are probably a bit confused. With mobile marketing, specifically SMS/text message marketing, the process to determine what is the right and legal way to go about a campaign can be quite confusing and overwhelming. You hear terms being tossed around such as MMA (Mobile Marketing Association), the CTIA (The Wireless Association), FCC, TCPA, and others. Confusing at first, yes. But once you see it broken down, it will all make sense. And it all serves a purpose.
First, we should ask why are there seemingly so many different laws, guidelines, legal bodies and associations that enforce such laws. The answer is quite simple: consumer protection and litigation. Do a quick Google search on mobile marketing class action lawsuits, and you will see a litany of results. It’s only getting worse. It only makes sense to protect businesses and mobile marketing providers by creating and enforcing industry guidelines. This benefits everyone (consumers, brands, businesses, and mobile marketing providers) except litigation lawyers. Let’s decrypt the web of laws and guidelines that businesses and providers need to follow:
Federal Law: Telephone Consumer Protection Act (TCPA) of 1991
The TCPA was enacted by the FCC (Federal Communications Commission) in order to protect consumers from unwanted telephone solicitation. This act was extended to include text messaging. Two primary changes to the TCPA took effect on October 16, 2013:
Prior express written consent: Unambiguous written consent is required before any telemarketing call or text message.
No “established business relationship” exemption: Established business relationship no longer relieves advertisers of prior unambiguous written consent requirement.
These two changes are not an issue for most businesses using a provider like Clearstream. Why? Because the subscriber already gave prior express written consent by initiating an opt-in via text message or web-form (which is considered an E-signature by the FCC). This puts most businesses in the clear. However, these changes do affect businesses that have uploaded customer lists. To do this (send customers text messages without first requiring an opt-in via text or web-form), the business must obtain express, written consent that the customer/subscriber wishes to receive future messages from you. This consent must be clear, written proof that would hold up in an audit.
Now, the changes that affect all businesses, regardless of how they collect opt-in subscribers, is the terminology and verbiage that must be clearly communicated to a new subscriber upon opt-in. Due to the changes made to the TCPA on October 16, 2013, businesses must now disclose to the subscriber that:
They will receive messages from the business via an autodialing telephone system, and
That their consent is not condition for purchase.
These changes will not affect Clearstream’s customers, as we now insert this disclaimer in the initial opt-in message. When a new subscriber opts-in to your campaign, they will, and have always received two messages: your auto-response message and a standard opt-in message. The standard opt-in message now looks like this:
[businessname]: Reply STOP to end, HELP for help. Max X autodialed texts/mo of alerts. Consent not required to purchase. Msg&DataRatesMayApply.
The Revised TCPA Act: FCC-TCPA-Act.pdf
Industry Guidelines: Set forth by the CTIA (The Wireless Association)
Who is the CTIA? The CTIA-The Wireless Association® is an international nonprofit membership organization that has represented the wireless communications industry since 1984. Membership in the association includes wireless carriers and their suppliers, as well as providers and manufacturers of wireless data services and products.
The association advocates on behalf of its members at all levels of government. CTIA also coordinates the industry’s voluntary efforts to provide consumers with a variety of choices and information regarding their wireless products and services. This includes the voluntary industry guidelines; programs that promote mobile device recycling and reusing; and wireless accessibility for individuals with disabilities. – http://ctia.org/aboutCTIA
Essentially, all companies that are involved in the wireless industry, including mobile marketing, fall under the guidance of the CTIA. They advocate the interests of all wireless industry players.
The CTIA Mobile Marketing Compliance Handbook: CTIA-Compliance-Handbook-July-2013.pdf
Mobile Marketing Best Practices: Set forth by the MMA (Mobile Marketing Association)
Who is the MMA? The Mobile Marketing Association (MMA) is the premier global non-profit trade association representing all players in the mobile marketing value chain. With more than 700 member companies, the MMA is an action-oriented organization with global focus, regional actions and local relevance. The MMA’s primary focus is to establish mobile as an indispensable part of the marketing mix. The MMA works to promote, educate, measure, guide and protect the mobile marketing industry worldwide. The MMA’s global headquarters are located in the United States and it has regional chapters including North America (NA), Europe, Middle East and Africa (EMEA), Latin America (LATAM), and Asia Pacific (APAC) branches.
MMA members include agencies, advertisers, hand held device manufacturers, carriers and operators, retailers, software providers and service providers, as well as any company focused on the potential of marketing via mobile devices. – http://mmaglobal.com/about/who-we-are
The MMA, much like the CTIA, is a global association for the mobile marketing industry. They also work on federal and local levels on behalf of mobile marketing providers. The MMA also provides guidelines and best practices for players in the mobile marketing industry. Much like the CTIA guidelines, these best practices clarify proper opt-in / opt-out specifications, message flows, campaign requirements and terminology, and a host of other factors to consider when implementing a mobile marketing campaign.
The MMA Mobile Marketing Best Practices: MMA-Best-Practices.pdf
Summary of the TCPA, CTIA and MMA
The FCC enacted the TCPA Act to protect consumers from telemarketing spam. In order to legally engage consumers through mobile marketing, a company (and providers like Clearstream) must abide by the laws set forth by the TCPA.
The CTIA and MMA are in place to provide guidelines, mobile marketing best practices, industry advocation, and to ensure carrier compliance. Carrier compliance is critical to the short and long term success of any SMS/MMS marketing campaign.
In short, Clearstream adheres to all laws and guidelines set forth by the FCC under the TCPA Act, as well as the MMA and CTIA. If you have any questions regarding your SMS campaign, please feel free to contact us. We will be happy to advise in any way possible.
Laws and guidelines:
TCPA Act: https://getclearstream.com/wp-content/uploads/2013/10/TCPA-Act-June-1012.pdf
TCPA Act October 2013 changes: https://getclearstream.com/wp-content/uploads/2013/10/FCC-TCPA-Act.pdf
MMA Best Practices: https://getclearstream.com/wp-content/uploads/2013/10/MMA-Best-Practices.pdf
CTIA Compliance: https://getclearstream.com/wp-content/uploads/2013/10/CTIA-Compliance-Handbook-July-2013.pdf
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