tcpa sms marketing laws webinar

© 2014 Tatango, Inc. All rights reserved.

Understanding TCPA Requirements


Presenters

Derek Johnson - Tatango - @thederekjohnson

Derek Johnson is the founder and CEO of Tatango. He’s been

helping businesses with their SMS marketing strategies for the

last seven years.


Table of Contents

● CTIA, FCC & MMA

● The History of the TCPA

● Advertising Requirements

● Exceptions

● Messaging Requirements

● Enforcement

● Record Keeping/Disputes

● Notable TCPA Lawsuits


CTIA, FCC & MMA

CTIA

● Created by the wireless carriers.

● In charge of enforcing SMS marketing practices.

● Mobile Commerce Compliance Handbook

● CTIA performs audits on SMS programs.

● Very specific in regards to text message marketing. (Msg&Data Rates, help &

stop commands, messaging frequency, links to terms & conditions, privacy

policies, etc.)

● CTIA guidelines aren't law, you can't be sued based on violating CTIA rules.


FCC

● Federal Communications Commission.

● TCPA (Telephone Consumer Protection Act).

● The TCPA is law... federal law.

● The TCPA is all about businesses receiving permission from the consumer to

text message them, and the specifics around how this permission can be

gathered, and what is allowed after the permission from the consumer is

received.


MMA

● Mobile Marketing Association

● Releases own best practices document.

● Similar to the Mobile Commerce Compliance Handbook that the CTIA puts out.

● The MMA best practices aren’t law, and aren't enforced by anyone.

● Creates industry confusion.


● 1991 - New law restricts telephone solicitations from businesses to

consumers without an “established business relationship”. Enforced and

managed by the Federal Communications Commission (FCC).

● 2007 - Ninth Circuit determines law applies to unsolicited text message

marketing (Satterfield v. Simon & Schuster).

● 2012, February - FCC announces changes to the TCPA (amendments),

taking effect on October 16, 2013.

The History of the TCPA


● 2013, October 16 - New TCPA changes go into effect.

● “Established business relationship” requirement replaced with

“prior written express consent” requirement.

● “Prior written express consent” can’t be a condition of any purchase.

● Both requirements need to be clearly displayed to customers before

they opted-in to a text message marketing campaign.


Prior Written Express Consent

● E-SIGN Act - website form submission, or a text message will suffice.

● Two requirements to get “prior written express consent” from your customers.

o Prior written express consent disclosure (see below).

o Disclosure must be made “clear and conspicuous” to customers.

Advertising Requirements

By participating, you consent to receive text messages sent by an automatic telephone dialing system.


Consent to these terms is not a condition of purchase.

Condition of Purchase Consent

● Customers can’t be forced to consent to receive text messages from your

business when they make a purchase.

● Disclosure must be made “clear and conspicuous” to customers.


CTIA Requirements

● Recurring Program Description (& subscribe to receive recurring SMS offers)

● Stop Instructions (Text STOP to opt-out)

● Cost Disclosure (Msg&data rates may apply)

● T&C/Privacy Policy Link (T&C/Privacy Policy www.bobsburger.com/sms-terms)

& subscribe to receive recurring SMS offers. Text STOP to stop. Message&Data Rates May Apply. T&C/Privacy Policy www.bobsburger.com/sms-terms


TCPA + CTIA Requirements


Exceptions

● Purely transactional messages (account alerts, travel updates, shipping

notifications, etc.)

● Entities regulated by the Health Insurance Portability and Accountability

Act of 1996.

● Tax-exempt nonprofit organizations.

● Political organizations.

● Customer’s wireless carriers (ie AT&T, T-Mobile, etc.).

● Debt collectors.


Messaging Requirements

Opting-Out

● Text messages must have an opt-out mechanism.

● CTIA required opt-out mechanisms (STOP, END, CANCEL, UNSUBSCRIBE,

QUIT),

Sending Time Frame

● No sending before 8 A.M in subscriber’s own time zone.

● No sending after 9 P.M. in subscriber’s own time zone.


Enforcement

● Consumer Lawsuit

o Recipients can claim damages of up to $500 for each text message.

o Willfully or knowingly violate the TCPA? Court may increase damages

to $1,500 per text message.

● State initiates civil action against your company.

● Complaints may be filed with the Federal Communications Commission,

which has the power to assess penalties against your company.


Record Keeping/Disputes

Record Keeping

● It’s your business's responsibility to bear the burden of proof for both...

o To demonstrate that a clear and conspicuous disclosure was

provided.

o The customer unambiguously consented to receive text messages

to the number he/she specifically provided.

● To protect your business, it’s advised to maintain each customer’s consent

for at least four (4) years, which is the federal statute of limitations to bring

an action under the TCPA.


Mobile Opt-Ins

● Keep copies of all advertising that promotes your SMS campaign.

● Keep a record of all mobile terminated, and mobile originated messages.

Web Opt-Ins

● Screenshots of the consent webpage as seen by the customer.

● Complete data record submitted by the customer.

● Keep a record of all mobile terminated and mobile originated messages.


Notable TCPA Lawsuits

Steve Madden

● TCPA Violation: According to the lawsuit, consumers claim that Steve

Madden sent them text messages about Steve Madden products and events

without their consent.

● Settlement: $10,000,000


Papa John’s Pizza

● TCPA Violation: According to the lawsuit, Papa John‘s franchisees sent

text messages to consumers that had previously purchased pizza, in order to

get them to order again. Papa John’s was unable to provide any evidence that

any customer who received the text messages gave their consent to be text

messaged.

● Lawsuit: $250,000,000


Jiffy Lube

● TCPA Violation: According to the lawsuit, Heartland Automotive Services, the

largest Jiffy Lube franchisee in America sent over 2.3 million consumers text

messages without their consent.



20th Century Fox

● TCPA Violation: According to the lawsuit, Twentieth Century Fox and

FoxStore.com sent unsolicited text messages to consumers advertising the DVD

release of the animated motion picture Robots.



Simon & Schuster

● TCPA Violation: According to the lawsuit, Simon & Schuster sent unsolicited

text messages promoting a new book to 60,000 mobile phones.



Coca-Cola

● TCPA Violation: According to the lawsuit, the plaintiff continued to receive unwanted text messages

from Coca Cola, regardless of their attempts to opt out, and despite Coca Cola’s own confirmation that

the defendant would no longer receive text messages.

● Settlement: ....

Questions?

Derek JohnsonCEO

Tatango@thederekjohnson

[email protected]
