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New Text Message Marketing Rules Take Effect

By Jeff McLinden

Stiff Regulations Hit Text Message Marketers

SMS ImageIf you are using text messages as part of your marketing strategy — or are considering doing so — be prepared for new regulations that are hitting the industry TODAY.  SMS text promotions have been a valuable part of many marketing strategies for companies large and small.  But failure to comply with new TCPA (Telephone Consumer Protection Act) regulations could result in financial penalties that don’t care if you are a small, medium or large marketer.

If you don’t want to face fines of up to $1500 per unsolicited text message, you need to be compliant with the new rules for opt-ins AND existing names in your marketing database!

The new rules are summed up and explained by Klein, Moynihan and Turco, LLP — a law firm that deals with compliance issues — in this way:

1)     Beginning October 16, 2013, prior express written consent will be required for all autodialed and/or pre-recorded calls/texts sent/made to cell phone and pre-recorded calls made to residential land lines for marketing purposes.

Compliance with the E-SIGN Act satisfies this requirement, meaning that electronic or digital forms of signature are acceptable (i.e., agreements obtained via email, website form, text message, telephone keypress or voice recording).

2)     Beginning October 16, 2013, the “established business relationship” exemption for pre-recordedtelemarketing calls to residential landlines will be eliminated.

In the past, advertisers could rely on an established business relationship (such as a previous purchase) to circumvent the need to obtain a consumer’s written consent to receive telemarketing calls.  That exception to the consent requirement will no longer exist after this year.  Advertisers will have to obtain written consumer consent, outlined above, even if they previously had a business relationship with the consumer.

With 150 or so characters per text, there’s little room for upfront promotional messaging with the new rules for what must be included in an opt-in message.  That’s why you’ll have to think about 2-step messaging approaches for your SMS messages.  When space is at a premium, and FCC-mandated text at a maximum, it’s best to keep it simple because the following are the MUST-DOs for your opt-in message:

  1. Clearly state the name of the sender and provide a distinct value proposition (don’t hide the opt-in)
  2. Provide opt-out instructions
  3. Indicate frequency of texts
  4. Disclose carrier costs and fees
  5. Include assistance language — “Text STOP or email XXXX or HELP for assistance”
  6. Include data language — “Message and data rates apply”

As Internet marketing blogger Brad Bortone says, that’s a mouthful, but so are the pages of legal documents you’ll be forced to review if you don’t comply.  Thanks, by the way, to Brad for the succinct list above.