New Text Message Rules - Get Your Text Message House in Order

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New Text Message Rules - Get Your Text Message House in Order

  1. 1. Mini Law Lesson Get Your Text Message House in Order By October 16 Brian Heidelberger bheidelb@winston.com Twitter @briheidelberger Info @ www.winston.com/bheidelberger
  2. 2. IMPORTANT DISCLAIMER • I am not your attorney. • This is not legal advice. • Seriously … I’m not kidding 2
  3. 3. “Please stop making these videos. You are doing a disservice to the industry” -F.T.C. 3
  4. 4. “Please stop making these videos. They are embarrassing” M.O.M. 4
  5. 5. What Happens On October 16? • FCC revised rule passed in 2012 regarding sending text messages  Now requires stronger form of consent to send marketing messages and additional disclosures • Previously just needed express consent • Now need express written (signed) consent • Now must state “Consent to get texts not req’d/condition of purchase” • Very significant penalties and risk of class action 5
  6. 6. Two Types of Text Messages • Transactional  “You have been entered in our sweepstakes”, “Your order will arrive tomorrow”, “your flight has been delayed” • Marketing Messages  “20% off today”, “New XX Now Available”, “XX Tastes Better”  Mixed Transactional and Marketing 6
  7. 7. Two Issues to Deal With • Future Text Message Registrations • Current Text Message Database 7
  8. 8. Future Text Message Registrations - Marketing • Need express written (signed) consent • Need to disclose “Consent to get texts not req’d/condition of purchase” • Consent can be via text or online • Need signature • Recommend double opt in 8
  9. 9. Future Text Message Registrations - Transactional • Need “express consent” • Can be done via text or online • Need to disclose that texts will be received  By texting you will receive up to 3 texts about the sweepstakes” • We recommend “double opt in”  Text to receive and sponsor sends a text request to confirm the opt-in 9
  10. 10. Current Text Message Database - Marketing •Need express written (signed) consent  Must include a signature (i.e., “Yes”) •Need to disclose “Consent to get texts not req’d/condition of purchase” •Most likely, your current list isn’t compliant •Should be re-upping consent periodically anyway •Consider sending out a compliant text before October 16 to establish compliant opt-in:  ‘Reply ‘Yes’ to sign to keep getting autodialed marketing texts from XXX. Consent to get texts not req’d/condition of purchase.” 10
  11. 11. Current Text Message Database - Transactional •No changes •Need express consent •If previously properly obtained express consent can continue to send to them 11
  12. 12. Additional Requirements/Best Practices When Getting Consent (1) clearly describe program, not blanket opt-in; (2) provide the name of the sender; (3) provide opt-out instructions; (4) indicate how many will be sent; and (5) disclose additional carrier costs; (6) give “help” instructions; and (7) If a check box is used, it may not be prechecked 12
  13. 13. Additional Requirements Best Practices When Sending Text Messages (1) Only send content described in the initial opt-in request (2) Include “assistance” language: “Text STOP to stop (conf. msg will be sent) or email XXX” and “Text HELP for help (3) Include “data” language: “Msg & Data rates apply” 13
  14. 14. Follow me on Twitter @BriHeidelberger 14
  15. 15. More Mini Law Lessons youtube.com/AdAge.com & youtube.com/BrianHeidelberger 15

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