This document provides a mini law lesson about new FCC regulations requiring express written consent to send marketing text messages beginning October 16. Specifically, it summarizes that marketers will now need signed consent to send marketing texts and must disclose that consent is not required for purchase. It also outlines the issues around future text message registrations and current databases marketers need to address to comply with the new FCC rules.

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. IMPORTANT DISCLAIMER
• I am not your attorney.
• This is not legal advice.
• Seriously … I’m not kidding
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3. “Please stop making these
videos. You are doing a
disservice to the industry”
-F.T.C.
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4. “Please stop making these
videos. They are embarrassing”
M.O.M.
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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
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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
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7. Two Issues to Deal With
• Future Text Message
Registrations
• Current Text Message Database
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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
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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
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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.”
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11. Current Text Message
Database - Transactional
•No changes
•Need express consent
•If previously properly obtained express
consent can continue to send to them
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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
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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”
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14. Follow me on Twitter
@BriHeidelberger
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15. More Mini Law Lessons
youtube.com/AdAge.com
&
youtube.com/BrianHeidelberger
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