Mobile Message Marketing – Managing the TCPA Risk

Be careful when you insert your brand into your users lives.  Manage your risk profile!

Be careful when you insert your brand into your users lives. Manage your risk profile!

If you haven’t looked at how to engage your customers via their mobile, you really need to, but you need to understand the risks associated with it so you don’t shoot yourself in the foot.  In 2009, the NY Times, quoting Jeff Lee of Distributive Network, wrote text messaging is “the certified mail of communications.  When you want to be sure people see something, send it by text.”  That was 2009 and there have been large developments that make it much harder for you to do it.  Next month the Telephone Consumer Protection Act (TCPA) enacts some new changes that open you up to huge problems if you aren’t prepared for it.

Text messaging is no different than phone calls

The first thing you need to understand is that the TCPA applies.  While first enacted in 1991 to protect consumers from unwanted phone calls to their homes, it does include text messaging.  The TCPA limits the use of automated dialing machines.  Any call or text sent through a system where an operator doesn’t input the number manually falls under this act.

While there are exceptions to the TCPA, they are limited.  They relate to emergencies and are based on a public policy concern.  It makes no sense to restrict your use of text messaging if you are telling people there is a threat to their life.  If you include some type of marketing in that message, you will fall right back into the TCPA.  So sending “there is a tornado in your area, it is time to protect your life, and here is a coupon for Stay-With-Us Motel so you have a place to stay,” is not going to be something that you can do.

The problem that some companies are facing is that the teams building out these systems to engage the customers this way may not be staffed with TCPA experts.  They may think that the TCPA only deals with actual phone calls.  If your company does any text messaging at all, you need to audit those services.

If you think this is something that is easily overlooked by authorities, please go back to my post on 8/1 and click on the link to the $250 million class action suit against Papa Johns, and Domino’s paying almost $10 million to settle a TCPA law suit.  That is real money folks.

October 16 will change your text world

Prior to the upcoming change you had some leeway concerning the TCPA if you had a pre-existing business relationship.  After October 16, you will no longer have that exemption.  In order to message someone by text messaging, you will need unambiguous written consent.  If you are familiar with e-sign regulations and statutes, just go there to understand what you will probably be required here to show that.  The burden to prove that you have consent is on you.

No harm, no foul, NO WAY!

I have heard some people come back to me when I have talked about the TCPA and ask where is the harm.  The problem is that the TCPA doesn’t care about the harm.  The TCPA is what is known in the law as strict liability.  So even if you messaged someone with a real offer to sell a Ferrari for $1, you are liable for $1,500 under the TCPA.  In fact each unsolicited text message you send is a separate violation, so that adds up pretty fast.

Doing what is right by your users

Informed consent was always something that I suggested even before these new changes were announced.  Just because you had someone’s number didn’t mean that you get to spam them.  While the “standard text and data rates may apply” has gotten so overused that I think it is overlooked, you should still tell your customers that.  Go further and have some text that says, “by giving us your number, you will receive text messages from us, which you can opt out of at any time.”  Your aggregators, and the cell carriers will require a simple opt-out process that is communicated with the first text message at least.

Consider making it free

While a bit complicated to implement across the almost infinite number of carriers, free to end users (FTEU) is something you should look at.  Your aggregators can help you set this up.  While many of us may have unlimited text plans these days there are still users out there that pay for every text they receive.  With FTEU you remove that bit of friction.  If you implement FTEU I even think that this may be something you tell your users.  “For users on these carriers, we offer this service free of any text charges,” is something you could consider on your landing pages.

Look at the platforms and your own apps

While you can’t get all your users to download your mobile app, the more you get people over to it, the less you need to rely on text messaging.  This is the biggest exception to the TCPA on mobile.  You wrote the app, they downloaded the app, and you control the user experience.  You can either use the OS’s built in notification mechanism, or just house your messages within functionality in the app itself.  In either case, the TCPA does not apply.

Larger lesson here

Text messaging is a fairly recent phenomenon.  It has taken off in recent years, so it is instructive that a law enacted first way back in 1991 applies.  That applies to much of what you do which I think we sometimes lose sight of.  Just because something is a new technology doesn’t mean that the law doesn’t apply, or hasn’t caught up yet.  You need to have people that understand that existing laws and regulations still control.  They need to understand how to apply them to your current situation, as well as doing the mental gymnastics to provide good solid ground to work within them.

However, if you always put yourself honestly in the shoes of your users and think about how they will really react to something you do, you will generally get to the right conclusion.  Who wants to get a text message offering a $1 Ferrari during the opening night screening of “Thor: The Dark World.”  One quick answer to that rhetorical – ME!

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