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We have received a high volume of calls about the Telecommunications Privacy Act now encompassing SMS texting. Instead of carelessly copying you a generic CYA statement from our attorney and then telling you to find a specialized SMS attorney and protect yourself, here are the facts:
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Every one of your mobile subscribers has been legally opted-in according to TCPA, FCC, MMA (Mobile Marketing Association) & CTIA guidelines. We can prove in a court of law (to the date and time) that each one of your customers texted in to receive ongoing messages and every message we send always has the necessary verbiage to Opt-Out of the program.
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This is why you work with a respected company like PUSH Mobile – We have an existing relationship with the FCC and CTIA. We have been audited for compliance several times passing each time. We survived a rigorous 120 day period to have our shortcodes provisioned by the carriers and that approval is ongoing and can be revoked at any time.
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We have already made tweaks to the program to be more compliant – Most of the significant changes are regarding people who opt in through a RewardPad or a web form rather than texting in a keyword. The wording was updated for HELP, TERMS, STOP and Consent to purchase.
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TCPA was written in 1991 and has not stopped unwanted telemarketing calls and unfortunately it will not stop people from spam texting. One of the great things about this law is it encompases long code texting which is where most spam texting resides, untouchable from enforcement organizations like the CTIA or even the carriers.
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These Guidelines were already in place and so were the fines – in fact the fines for not complying are higher – as much as $14,000 per text.
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Anyone can sue you for anything! Did you know that food allergies are covered by the Americans With Disabilities Act? Meaning you better check the way you label your peanut allergen warnings in the store because people can sue you for that too.
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The TCPA mandates are highly interpretive – Already there is plenty of movement by lobbyist, lawsuits and clarifications have been issued. The Supreme Court has been very helpful in ruling in favor of text marketers including a landmark decision earlier this year with Papa John’s, which allowed customers to verbally give their mobile number over the phone as a legal opt-in when ordering pizza.
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If you have recently purged or re-opted your list you are more than compliant and over-protected – You might have received many texts from Fortune 500 companies asking you to re-opt in to their list. The problem with this strategy is once you lose those subscribers you can not message them again even if TCPA offers more clarification later.
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Corporate marketers still struggle with the facts of SMS – PUSH Mobile is happy these new provisions are in place and will make text marketing even more valuable in the future. Traditional media, Email, Apps and Social Media all fall short when compared to the value and results of SMS text marketing.
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Explained Visually Above – We made this visual graphic at the top of the page three years ago to help better explain the necessary disclaimers – it still is viable and holds true today.
Latest Mobile Marketing Stats
This is why SMS is still king in the mobile world reach.
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SMS: 98% of text messages are read, with the average response time 90 seconds (compared to 2.5 days for an email).
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SMS Marketing: 75% of people prefer receiving ads via SMS and 70% of Americans would like to receive mobile coupons from their favorite businesses, with SMS coupons more likely to be redeemed and shared than mail or newspaper coupons.
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First mobile of the day: 32% of consumers check their text messages first thing in AM – versus 24% checking email, 8% news, 8% Twitter/Facebook
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SMS opt-out rate: Average opt-out rate for SMS across all campaigns is less than 5%.
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Marketers using mobile: 76% use mobile web, 60% mobile apps, 49% mobile email, 42% mobile ads, 41% QR codes, 38% mobile messaging, 30% mobile search, 20% push, 16% LB mobile marketing, 3% Passbook/mobile wallet
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SMS benefits: 63% of marketers cite immediacy as top benefit for using SMS campaigns, followed by high open rates and low cost @ 45%
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Smartphone penetration: stands between 56% and 59% in the U.S. – roughly 142 million consumers
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Top smartphone platforms: 52% Android, versus 39% Apple, 5.2% Blackberry and 3% Microsoft
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Cell phone activities: for the 91% of American adults that use cell phones, 81% send or receive text messages, 60% access the internet, 52% send or receive email, 50% download apps, 49% get location-based information, 48% listen to music, 21% participate in video chat and 8% “check in.”
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Email Marketing: 34.9% of marketing emails sent to iPhones receive 0-3 seconds of attention, versus 22.4% for Android phones, 41.2% for iPads and 29.5% for Android tablets.
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Smartphone user share: By 2014, 87% of smartphones will be iOS or Android, up from 70% in 2011.
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U.S. mobile commerce: Topped $10 billion in the first half of 2013 and could pass $25 billion by year end.
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Smartphone penetration: The U.S. ranks 13th in smartphone penetration at 56.4%, with the UAE leading the way at 73.8%.
Sources: Mashable, Techcrunch, eMarketer, Fuqua School of Business, VentureBeat, Pew,SmartInsights, Pew, Movable Ink, eMarketer, Mashable
This is a copy of the notification we sent to all clients….
New TCPA policy effective 10/16/13 – Important changes for SMS programs
….If you modify your recommended text messages or send your own text blasts through the PUSH Mobile Platform this is a must read:
This week, October 16, 2013, marks the implementation of a revised TCPA policy. The Telephone Consumer Protection Act now extends well beyond original guidance for telemarketing to encompass text messages. There is no single interpretation of the new policy meaning the new TCPA landscape is fraught with uncertainty and risk. We strongly recommend that you consult with your own legal counsel on how the new TCPA policy impacts the way you communicate by text with your customers.
PUSH Mobile Marketing, Inc. has taken strenuous strides to educate our own customers and follow MMA and CTIA standards for subscribers to opt into a program. Continued adherence to these standards remains a critical factor in meeting the new TCPA policy.
There is significant legal risk for failure to properly opt in phone numbers to a list. The new TCPA policy permits damage recoveries ranging between $500 – $1,500 per text sent to individuals who have not properly consented to receive such messages or who received messages they did not anticipate.
You may find the following materials helpful. This information is provided for informational purposes only and is not intended to constitute legal advice or to fully outline all details of the new TCPA policy. Rather, we again, suggest that you consult your own legal counsel regarding the new TCPA policy. You remain responsible for assessing your own requirements and risks as it relates to your business. Please click on the links below:
1. PUSH Mobile Marketing SMS Promotion Guidelines: requirements of our customers
2. FCC TCPA Policy
The items below were recently issued by CTIA for reference purposes and are provided simply as additional reference material.
Additional TCPA Reference Materials
3. CTIA Email update
4. Morrison & Foerster
5. TCPA_KleinMoynihanTurco_Explanation_2013.pdf
6. TCPA Mofo 2013
Please contact me or your account manager with any questions – we are here to help and want to continue to make the program successful for you while following best practices.
Best,
PUSH Mobile Team
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