FCC Ruling Gives Boost To Mobile Marketers

by Wendy Davis, Nov 30, 2012, 5:58 PM

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Mobile marketers now have one less problem to worry about, thanks to a new ruling by the Federal Communications Commission.

The FCC said on Thursday that marketers don't run afoul of a consumer protection law by sending a single, confirmatory text message to people after they revoke their consent to receiving such messages. "Confirmation messages ultimately benefit and protect consumers by helping to ensure ... that the consumer who ostensibly opted out in fact no longer wished to receive text messages," the FCC said in its decision.

But the FCC also imposed limits on confirmatory texts after an opt-out. Specifically, the commission said the text should be sent within five minutes of an opt-out request, and that the message shouldn't include any ads or promotions. The FCC added that companies that take longer than five minutes to send a confirmatory message will have to prove that the delay was reasonable.

The FCC's decision came in response to a petition for declaratory judgment filed in February by SoundBite, a Bedford, Mass.-based company that sends text messages on behalf of banks, retailers and other marketers.

SoundBite president and CEO Jim Milton says the company requested the ruling after two of its clients, GameStop and Bank of America, were sued for allegedly violating the Telephone Consumer Protection Act by texting consumers to confirm that they had opted out of future messages. Those lawsuits were put on hold while the FCC considered SoundBite's petition.

The TCPA prohibits companies from using an automated dialing service to send SMS messages to people without first obtaining their consent. The law provides for damages of up to $1,500 per incident.

The FCC's ruling comes as marketers are facing a proliferation of suits related to the law -- including more than a dozen cases centered solely on texts sent to confirm an opt-out. So far, judges have ruled in favor of two companies -- Citibank and Taco Bell -- sued solely for sending a confirmatory message.

While the federal judges presiding over the other open cases can make independent decisions about the legal issues, judges tend to follow the FCC's lead in this area -- which means the ruling will probably put an end to some of the pending lawsuits.

Milton cheered news of the FCC's ruling. "In our view, mission accomplished," he says.

The Mobile Marketing Association also praised the decision, stating that the ruling "aligns TCPA with established industry guidelines."

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