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Surviving TCPA 2013: Urgent Strategies for Mobile Marketers

Pagers and bag phones were the mobile devices of the day when the Telephone Consumer Protection Act (TCPA) was passed in 1991. Since then, mobile devices have become supercomputers and mobile marketing has evolved along with them. Playing catch-up, the FCC has revised TCPA with new regulations that every mobile marketer needs to understand and adapt to without delay.

Large brands have accepted eight-figure settlements for text message violations of previous TCPA rules. Noncompliance with the new regulations could result in penalties from $500 to $1500 per infringing text message. Understanding and adapting is the only sound choice.

Crucial changes

First announced in February 2012 and implemented on October 16, 2013, the revised TCPA requires clear and conspicuous disclosure for marketing text messages that includes two crucial facts:

1. That opting in will result in text messages being sent to the mobile phone number provided by the consumer, and,

2. That opting in is not required to complete a purchase or other transaction with the brand.

The new rules also require express prior written consent, as recorded through reply text, key press, digital signature, or other form allowed by state or federal law.

Diligent, ethical marketers may not immediately see why the October 16 effective date is such an important milestone for their businesses. Even if you followed previous best practices and MMA guidelines, your list is probably not TCPA 2013-compliant due to not displaying the two disclosures above. In addition, there is no “existing business relationship” exclusion under the new rules. Trade groups are advocating with the FCC to grandfather prior marketing opt-ins, but any hope that the appeal would be acted on before October 16 was surely dashed by the federal government shutdown.

TCPA 2013 strategies: New opt-ins, new messaging

Your brand survived CAN-SPAM and has endured previous TCPA regimes, and it will survive TCPA 2013, as well. But these two steps need to be followed immediately:

1. Marketers with multichannel contacts should be working to reach consumers via email, landing pages, mobile app, and other permitted channels to secure texting permission under the TCPA 2013 guidelines.

2. Audit and update all mobile signup messaging, including in-store displays, Web pages, and double-opt-in verification texts, to include the clear and conspicuous disclosure required by TCPA 2013. For example, “Texts may be sent using automated technology from [brand], and consent is not a condition to make a purchase.”

Long-term impact

Even if you were caught flat-footed by the TCPA 2013 rollout, you’re not completely cut off from your customers. Only marketing messages are covered. Transactional and service-related messaging is unaffected by the new regulations, so you don’t need to secure new opt-ins before sending out tracking numbers or statement notifications.

Most brands will face a significant drop in list size unless they were working to re-verify their lists for the past several months. However, industry efforts continue with a petition requesting that the FCC to forbear from enforcing the new disclosure standard for companies’ existing written consent agreements. Most continue to hold out hope that this will prove successful; but if not, this shakeup will spur leaders to think about the importance of giving consumers the tools and access they need to manage their own marketing preferences at a granular level. Consumer choice about which channels they wish to be contacted through, and how frequently, are an important step in the self-regulation we need to continue to promote to head off regulator-sparked fire drills like this one.

Michael Della Penna is senior vice president of emerging channels at Responsys

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