Are SMS Campaigns a Double-Edged Sword?

As the explosion in mobile usage continues, new regulations force us to ask the question: Are SMS Campaigns a Double-Edged Sword?

On one sharp edge is the fact that mobile marketing is growing at a mind-boggling rate.  According to analyst group Forrester research, with more than one billion smartphones in consumers’ pockets in 2013, mobile marketing is driving a second Internet revolution.  It’s also a fact that Millennials, our growing consumer base, pay more attention to text messages than to direct mail or email messages.  The pressure for marketers to reach out to consumers with SMS campaigns is compelling.  On the other edge, however, are the new FCC rules, which are making compliance with TCPA (Telephone Consumer Protection Act) more cumbersome and the penalties for non-compliance even more staggering.

“There is significant nuance to the new TCPA rules and many trap doors leading to enormous potential liability.  New cases interpreting the TCPA are being decided almost daily.  Moreover, the FCC seems intent upon continuing its expansion of liability under the new TCPA rules.”, says Klein Moynihan Turco LLP, a law firm with practices in Internet and mobile marketing law. So, what’s a marketer to do?

SMS Campaigns are powerful, but pay attention to the new rules:

First of all, marketers should pay special attention to two new changes in the TCPA regulations as defined on October 16, 2013:

•   “Unambiguous written consent” is required before text messages or calls can be sent to a consumer.  Written consent can be obtained via text message, email or a completed web form.  It’s also important to keep a record of this written consent for at least four years.

•  “No business relationship exemption” – An established business relationship no longer relieves marketers of the unambiguous written consent requirement.  Consumer consent must be unambiguous, meaning that the consumer must receive clear and conspicuous disclosure that he or she will receive future text messages from the company, that his/her consent is not a condition of a purchase, and that he or she must designate the phone number at which to be reached.  This last rule means that marketers can no longer pre-fill the consumer’s phone number on forms.

The best way to work with this double-edged sword is the double opt-in procedure that you may already be using for your email campaigns.  A double opt-in for your SMS campaigns will allow you to connect with those consumers who really want to hear from you via text – like Millennials – and as a result, you’ll have a much higher engagement with them over time. The first step of the opt-in, whether via email or web-form, should require the customer to submit three pieces of information – their name, a mobile number, and consent to receive text messages.  Again, this information should not be pre-filled.  This will give you the required written consent you need as it includes name, mobile number and an agreement to terms and conditions.  The second step of the opt-in should be a text message confirmation sent to the customer’s designated mobile number from step one.  This message should allow the customer to reply ‘Yes’ or ‘No’ to receiving future text messages from you and it should also make clear that your text messages can be stopped at any time by texting ‘STOP’ as a reply.

Boingnet SMS Campaigns:

At Boingnet, we not only recognize that SMS campaigns will become an important marketing tool but that keeping up-to-date with all the FCC rules will be absolutely critical.  Our new SMS campaign feature in V2 will help you comply with the latest TCPA regulations while you’re connecting with your customers on their favorite device.

More information on the new changes to TCPA can be found at “Client Update: Are You Ready for the New TCPA Regulations Regarding Text/SMS Marketing That Go Into Effect on October 16, 2013”  Perkins Coie LLP.