SUMOTEXT Corporation: TCPA Panic Not Necessary for CTIA Compliant SMS Messaging
LITTLE ROCK, AR -- (Marketwired) -- 10/11/13 -- SUMOTEXT
Corporation (http://www.sumotext.com/) issues an in-depth explanation
of what is to come regarding the TCPA mandatory compliance issues
facing SMS Messaging programs that will be going into effect on
October 16, 2013.
Have you received one these text messages lately from a short code
"BRAND: Still want to get our alerts? New law requires you to reply
"YES" to stay on this list.
Txts r autodial. Not required for purchase. New law takes effect
10/16 so don't delay!Msg&Data rates may apply."
Why are we getting these messages?
While the CAN-SPAM Act of 2003 authorizes the Federal Communications
Commission (FCC) to consider mobile messages when developing
guidelines, the FCC has taken the position that text messages sent by
automated broadcast systems are 'automated calls' and are therefore
best covered under the Telephone Consumer Protection Act (TCPA) of
On February 15, 2012 the FCC amended the Telephone Consumer
Protection Act (TCPA) of 1991
(http://transition.fcc.gov/cgb/policy/TCPA-Rules.pdf) to remove any
ambiguity surrounding consent requirements for SMS and MMS messaging.
These changes are finally going into effect 20 months later this week
on Oct. 16, and are creating a flurry of last-minute messaging
campaigns aimed at existing subscribers who may have already given
prior affirmative consent.
So what about TCPA has changed?
Simply put, TCPA now makes it mandatory for businesses to receive
"prior express written consent" before auto-dialing or texting
consumers. Assuming everyone already understands that the Electronic
Signatures in Global and National Commerce Act (ESIGN)
makes electronic signatures and records just as good as their paper
equivalents, the noteworthy changes are:
1. New requirement for prior express written consent to deliver a
prerecorded marketing message to a residential landline -- which is
now consistent with the Federal Trade Commission's existing rules on
2. "Prior express written consent" will require (1) a clear and
conspicuous disclosure that by providing consent, the consumer will
receive auto-dialed or prerecorded calls or texts on behalf of a
specific seller; and (2) a clear and unambiguous acknowledgment that,
having been informed about the consequences of consent, the consumer
agrees to receive such calls at the mobile number provided.
3. The consumer's consent to receive calls cannot be required as a
condition of allowing the consumer to make a purchase of any good or
4. The caller (content provider for SMS) will bear the burden of
establishing, by clear and convincing evidence, that prior express
written consent was obtained.
5. No "grand-fathering" provision for implied consent -- i.e. just
because you have a business relationship or have been messaging a
consumer before October 16, you will still need prior express written
consent to send texts or make prerecorded calls.
So what's the controversy with TCPA?
While anyone with a certified short code knows that handset-initiated
opt-in and web-initiated double opt-in have always been fundamental
tenants of our industry's self-regulatory framework, the FCC's
language does not say how their new rules apply to content providers
who already adhere to these long-standing practices.
In other words, a small minority of companies are interpreting the
new rules to imply everyone must start over and re-opt-in everyone in
their database, essentially wiping out years of investment based on
the Mobile Marketing Association's (MMA) Best Practices
(http://www.mmaglobal.com/files/bestpractices.pdf) and the Wireless
Association's (CTIA) Mobile Short Code Playbook
So who in the world would destroy their database?
First, there are many companies that have played fast and loose with
the CTIA's self-regulatory framework. Just ask Aegis Mobile
or WMC Global (http://www.wmcglobal.com/faq.html), the CTIA's and
wireless carrier agent auditors who proactively search for
non-compliant calls to action (CTAs) in marketing channels and who
have issued thousands of audit violations on behalf of the wireless
Every brand and content provider should stop now and thank the CTIA,
the auditors, their partner aggregators, and their application
providers for forcing them to include all of those descriptive,
up-front disclosures next to their phone number collection fields and
Brands should be equally upset with all those application providers
who let them build subscriber lists with web forms or sign-up sheets
that did not follow (enforced) industry standards. By failing to
comply with self-regulation, some brands did not take advantage of
the immediate verified/double opt-in processes prescribed by the
CTIA. Some did not authenticate their subscribers using the handset
(which satisfies ESIGN), or make it clear to recipients what they
were signing up for.
But even the most compliant programs run by the most compliant
marketing departments can still be prone to panic-induced myopia. And
some organizations with ultra conservative general counsels would
rather be safe than self-audit or worry about how good of a job their
marketing team did in following existing industry standards.
If you're compliant with the CTIA, you're compliant with TCPA
The Wireless Association's self-regulatory schema has evolved
steadily over the past 7 years. It began with the 2003 MMA Consumer
Best Practices, the MMA Code of Conduct, and is currently
administered by the CTIA under a consolidated Common Shortcode
Monitoring Compliance Playbook. Those of us that have followed these
rules know that this gold standard already goes far above and beyond
even the new TCPA rules.
Are you compliant with CTIA Playbook?
While wiping out your database and starting over is not an admission
of guilt, there are a few questions to ask yourself before you panic
and attempt to emulate what brands like Abercrombie & Fitch, Sonic,
Target, and Bed, Bath, & Beyond have all done this week.
1. Was the call to action in our advertising clear to the consumer
and compliant with MMA and CTA guidelines?
2. Was the opt-in confirmation message we sent new subscribers
compliant with MMA and CTA guidelines?
3. Is our current messaging content still related to the original
program the subscriber opted in to?
4. Do we include "Reply STOP to opt-out" at the end of our messaging
5. If you used a webform for opt-in, did we provide an empty check
box with a link to our CTIA compliant mobile T&C's?
6. If we used a webform for opt-in, did we immediately send a
double-opt in confirmation request to verify the handset?
7. If we used a webform for opt-in, did we receive the handset
verification as a pin number or "YES"?
8. Do we still have all single or double opt-in confirmation message
on file with a time stamp?
Questions that CTIA and the FCC Should Clarify
Are we certain that the way the new TCPA rules are written, that
these disclosures would even make sense to consumers opting in to an
SMS messaging program?
Are we certain that the FCC intended for its new conditions to be
disclosures and not merely rules of the road?
If they are intended to be disclosures, should those only be in the
T&Cs, or should they also be in every call to action and opt-in
confirmation message flow as well?
If the government were not shutdown, there is petition that would
already be on file with the FCC seeking clarification on these and
other questions. And we believe the FCC will respond similarly to
their November 30 statement that clarified that the MMA-prescribed
opt-out confirmation messages were not in violation of the TCPA.
According to FCC Commissioner Ajit Pai, "Hopefully, by making clear
that the Act does not prohibit confirmation texts, we will end the
litigation that has punished some companies for doing the right
thing, as well as the threat of litigation that has deterred others
from adopting a sound marketing practice."
Conclusions for TCPA's Impact on SMS Programs and Threats of
Those who have refused or neglected to follow the CTIA's
self-regulatory framework in the first place have always been at risk
of lawsuits. We totally concede that these programs would absolutely
need to reconfirm their subscribers and update their disclosures and
terms moving forward. What nobody should concede is that this somehow
invalidates other, valid consent agreements.
This is the problem with the rash, new best practices that some third
party attorneys and self-appointed interpreters of TCPA have recently
prescribed. They are rooted in the cost-analysis of litigation.
Frivolous lawsuits are going to happen whether you destroy your
database and start over or not. But best practices are not written or
followed to prevent lawsuits. They are written and followed to
protect consumers, provide a high standard of care, and provide
companies the tools to defend their business practices and ultimately
SUMOTEXT Corporation is a one stop shop for marketers wanting to
kick-start and sustain conversations with mobile audiences via SMS
and MMS. Our diverse roster of brands, agencies, and non-profits
leverage our SMS gateway and campaign management tools to activate
their offline media, spark mobile conversations, and collect data by
engaging their most valued customers and constituents on their mobile
device via text messaging.
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