New TCPA Guidelines: What Do They Mean For Mobile Marketing?

By now, you have likely noticed that everyone is talking (and texting) about the amendments to the Telephone Consumer Protection Act (TCPA) — the same legislation that spawned the “Do Not Call” registry.

But the news isn’t exactly new. In fact, the TCPA guidelines were amended by the FCC in early 2012; but, they just went into effect on October 16, 2013. So why should we be concerned?

While the guidelines encompass telephone solicitations as well as messaging, this article will focus on the impact of these changes to mobile marketers in particular. We will cover:

• The changes to the existing TCPA guidelines
• How these changes are affecting us
• How these changes are affecting our customers

What Changes Were Made To The TCPA Guidelines?

The TCPA was updated to include text messaging under the umbrella of “automated calls” covered by the Act. Per the Act, we are now required to obtain, and maintain record of, prior written express consent from individuals before texting. The request for consent must specify that “consent is not a condition of purchase.”

Most of us were already obtaining consent, but few (if any) marketers were including the specific language. The Act also states that a prior business relationship does not override the written consent requirement.

How Are These Changes Affecting Marketers?

The amendments described above are simple enough, but most of us agree that much is left unsaid. The main question is whether consent obtained prior to the amendment complies with the new guidelines, especially if the new language was not included in the original message.

If consent obtained prior to the amendment is invalid, this means that every subscriber on our lists must reaffirm their consent or be excluded from future messaging campaigns until consent is given.

If consent obtained prior to the amendment is valid, we will simply need to include the new consent language going forward. This is assuming, in both cases, that we have appropriately archived written consent from our customers in the past.

The answer to this question is unclear in the law as stated; but, in the absence of a resolution, many mobile marketers went ahead and took action to avoid the risk of a potential lawsuit. Several large brands made the decision to request new consent from their list of subscribers, with many others following their lead. In many cases, the result was a significant reduction in subscriber lists from those who did not re-opt-in.

But, there are some encouraging developments underway. Given the confusion around Act, the Mobile Marketing Association recently organized a “Petition for Declaratory Ruling,” requesting the FCC to explicitly state that the new TCPA rules do not nullify prior written consent, meaning that we would not be required to ask consumers who previously granted written consent to re-opt in to receive future communications via mobile. This would also permit us to leverage our existing lists of subscribers for future messaging campaigns.

We will follow the progress of this petition and keep you informed of any change to the current law.

How Are These Changes Affecting Our Customers?

At this point, the only customers being affected are those who are being asked, usually for the second time, to provide their consent to participate in messaging campaigns. Other customers who may fail to reply to such a message may be removed from a messaging campaign and denied future value or information from a marketer.

Going forward, it is likely that we will have to include additional legal language in our messages, sometimes resulting in the delivery of two text messages instead of one. In the limited-character SMS format, this will confound the simple communication of a message to the consumer and may decrease engagement. On the other hand, messaging formats like rich media and long text can include the necessary legal language within a single message along with engaging content like images, barcodes and video.

The amendments to the TCPA have certainly caused a stir in the mobile marketing world, mostly driven by fear of legal action and a lack of information.

While uncertainty around the Act remains, we can safely conclude that regulation of mobile messaging will strengthen the relationship between brands and their loyal customers by further eliminating those service providers that spam customers with unwanted content. In a long term, this change in regulations will further amplify the explosive growth in the channel.