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Legal Aspects of SMS Marketing with InfoLawGroup


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InfoLawGroup partner and SMS marketing legal expert Jamie Rubin's slides from Signal's July 10, 2013 webinar, Everything You've Ever Wanted to Know About SMS Marketing.

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Legal Aspects of SMS Marketing with InfoLawGroup

  1. 1. Text Message Campaigns – Applicable Laws & Guidelines • Telephone Consumer Protect Act (“TCPA”) governs sending of text messages – Law is now clear: text messages are “calls” under the TCPA • Mobile Marketing Association (“MMA”) Guidelines – Not just “guidelines”- major carriers require compliance – Opt-in requirements – Required disclosures 1
  2. 2. 2  Requires express consent prior to sending any text message  Typical methods for obtaining the required authorization include:  Web sign-up forms  Text-in to a designated shortcode  All material terms of the offer should be presented at the time of authorization so that consent is adequate  Includes private right of action and statutory damages ($500 to $1500 per text). This is heavily litigated. TCPA
  3. 3. 3 REAL WORLD EXAMPLE August 2012: Heartland Automotive Services Inc. (a Jiffy Lube International franchisee) agreed to pay between $35 million and $47 million in cash and coupons for services in order to settle a class action lawsuit related to a “special offer” text message sent allegedly without consent. In re JIFFY LUBE INTERNATIONAL, INC. TEXT SPAM LITIGATION
  4. 4. 4 REAL WORLD EXAMPLE Timberland’s $8M Error Text messages about Timberland sale sent to thousands of consumers Consumers did not opt-in Class action settled Sept 2008 for $7,000,000 in damages Additional $1,750,000 to counsel ALSO, Timberland must set up training and compliance checks
  5. 5. MMA: Requirements for Calls to Action and Opt-in Management There are specific disclosure and opt-in requirements depending on the type of campaign at issue: –“Standard rate” or “premium rate” program? –One time message or recurring message program? 5
  6. 6. MMA: Required Call to Action Disclosures for all Campaigns – Identify the sender – Describe the campaign and the frequency of the texts to be received – Include the opt-in key word, if applicable – Include “MSG & DATA RATES MAY APPLY” – Include “TEXT HELP TO <SHORT CODE> FOR HELP” – Include any other material terms (e.g. carrier or device limitations) 6
  7. 7. MMA: Additional Disclosures  Additional Call to Action disclosures for recurring message campaigns – TEXT STOP TO <SHORT CODE> TO STOP  Additional Call to Action disclosures for premium rate campaigns include: – The applicable fees (must be in the first line of the call to action) – The subscription term (should not be longer than one month) – Any disclosure that could affect the functionality, features or content (e.g. carrier or device limitations) 7
  8. 8. The Opt-In Process • No text should be sent unless the consumer opts-in – Single Opt-in Required for Standard Rate Campaigns – Double Opt-in Required for Premium Rate Campaigns • Double Opt-in requires consumer reply back to the text message indicating their desire to opt-in, e.g. “Reply YES to opt-in” – If no response is received, there is no opt-in: DO NOT send any further text messages. • Confirmation message required for Premium Rate campaigns and Standard Rate Recurring Message campaigns • If eighteen (18) months elapse without sending a text, the opt-in expires • The opt-in applies only to the specific campaign for which it was received 8
  9. 9. Additional Message Requirements • MMA has specific requirements for Confirmation Texts (e.g., “welcome” texts) • Recurring Messages have additional requirements including sending monthly reminders that include information on fees, if any, and that “msg & data rates may apply” • Consider Recycled Numbers 9
  10. 10. The Opt-Out Process • The opt-out instructions must use the word “STOP” in ALL CAPS to indicate an opt-out (e.g. Reply STOP to cancel) – But any response indicating a desire to opt-out (QUIT, CANCEL, etc.) must be honored. – Periodically scan (at least every thirty days) to look for these types of opt-out requests, and then opt that consumer out • The opt-out must be automatic 10
  11. 11. Recent Real World Examples Class actions filed for sending final confirmatory message after consumer sends opt-out request. It’s an MMA requirement but….: •Jaber v. NASCAR - First Amended Complaint filed on December 8, 2011 •Moss v. Twitter - Settlement likely reached (a voluntary dismissal was filed, and the court entered the dismissal on July 13, 2011) •Ibey v. Taco Bell Corp. -- U.S. District Court for the Southern District of California dismissed on June 18, 2012, holding that a single, confirmatory opt-out text message does not violate the TCPA. But . . . At least one additional lawsuit filed since this dismissal. 11
  12. 12. REAL WORLD EXAMPLE • Settlement of NBC (Apprentice) and FOX (American Idol) Text to Win Sweepstakes Lawsuits – Consumers could enter by sending a text message subject to a $0.99 premium charge or by filling out a free online entry form. – Plaintiffs argued that the sweepstakes were unlawful (notwithstanding the free method of entry) because individuals didn’t get anything of value for the money they paid to enter, other than the opportunity to win prizes. – Settlement: 5 year injunction barring them from offering sweepstakes in which entrants must pay premium text message charges without receiving something of comparable value to the charges in addition to the entry. 12
  13. 13. Text Message Campaigns: Additional Red Flags • Premium text message campaigns • Sweepstakes entries via text • Campaign directed to children • Potential interaction with Do Not Call if company does any direct phone marketing or obtains opt-ins via telephone 13
  14. 14. Text Message Campaigns Key Takeaways• Express, prior, written consent must be obtained for EVERY text message sent to a consumer • There are detailed requirements for all text message campaigns; they may not be fun but they must be followed • Offer a free method of entry in any text message sweepstakes for both standard and premium rate campaigns • Keep accurate opt-out records and make sure to honor opt-outs – no matter what term is used 14