Mobile legal issues still nascent: ERA

Mobile marketing, specifically text message marketing, is so new that it does not have many laws or statutes governing it.

But if marketers stick to privacy and opt-in rules that already exist for other mediums, they should be able to avoid legal pratfalls, said Roger Colaizzi, an attorney with Venable LLP.

Colaizzi spoke about the still-undetermined privacy laws relating to mobile marketing during a presentation at the Electronic Retailer’s Association conference in Las Vegas.

“In some ways, there are no rules,” he said.

Colaizzi said the best thing marketers can do is look to guidelines established by the Direct Marketing Association and Mobile Marketing Association for best practices in text message marketing.

Both organizations and Colaizzi agree marketers should wholeheartedly embrace that the consumer is king.

“The customer should always be in control of the relationship,” he said.

The DMA recommends a single opt-in for text message marketing, while the MMA suggests double opt-in, he said.

But one thing marketers must be sure of is to make opting out as easy as opting in.

“The burden is on the marketer to prove they have permission to send their messages to a mobile device,” he said.

He said marketers should follow some basic rules when using text message marketing: make sure the consumer wants the message, make sure it’s relevant, and don’t send messages too often.

For legal purposes, Colaizzi said businesses should keep in mind that the Federal Communications Commission treats text marketing as it would telemarketing.

Also, companies should treat their text marketing as they would e-mail marketing and make sure to follow CAN-SPAM Act compliance laws.

Colaizzi said a federal regulator could cite CAN-SPAM violations regarding text message marketing in a court of law.

However, businesses should fully embrace text message marketing as much as any other channel.

“There is not much advertising on mobile devices, and that means there is a lot of opportunity,” he said.

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