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Potential Legal Issues If You Are Using SMS...

by Melody
7 replies
Hi All -

If you are using or planning to use SMS as part of your IM strategies for 2009 - please be aware that there are some major legal issues that you need to be aware of. Unfortunately, not all of the services that are being marketed right now are letting their customers know what these issues are - and this could result in some major legal issues and fines eventually.

SMS/text marketing is essentially governed by the same regs as email, in other words - you need to be CAN-spam compliant. Ideally, you should be using a double optin system, but at this time single opt in is still considered okay.

BUT - the biggest issue is that if you are asking for your subscriber's mobile phone number - YOU MUST ADVISE THEM THAT THEY MAY BE SUBJECT TO CHARGES BY THEIR CARRIER FOR ANY MESSAGES THAT THEY RECEIVE FROM YOU.

You must also list all of the carriers that your gateway utilizes.

Even if you are using one of the old style email to SMS softwares that are still available - you must provide the disclosure. The type of system that generates the message on the front end is not important - it is the fact that it is being received as a text message on the receiving end, and could therefore generate a fee to the recipient that is the issue.

What your message must include will vary based on the carriers that your particular service or gateway uses - but not putting the warning on the page is very risky. And with the expected growth of mobile marketing this year - there will be a lot more oversight on this issue.

I just received an email from a very well known IMer this am - and was surprised to see that he was collecting mobile numbers - without the required verbiage......and yes, I did drop him a note!!

The disclaimer must be on all pages where the consumer is given a chance to opt in or demo the service in any way that could generate a text msg fee and if you are working in the offline field - it must be in all printed materials (ads, table tents, posters etc) and verbally in any TV or radio ads (just like those drug company disclaimers)

We actually put the disclaimer in the footer on every page of our sites (PM me if you would like the URLs - I really don't want this post to be a pitch!)

So, while I am personally glad to see the growth of mobile/SMS marketing - I also want to make sure that if you are going to use it - you use it safely and legally!

Melody
#issues #legal #mobile marketing #potential #sms
  • Profile picture of the author Huguito
    Banned
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    • Profile picture of the author Melody
      Originally Posted by Huguito View Post

      May be if you search in Google?
      Another troll? what does this have to do with the thread??
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  • Profile picture of the author BrianMcLeod
    Excellent post, Melody.

    This is an area that will see big growth in 2009 but the "postage due" nature of the medium makes it significantly different than email.

    It's one thing having an email flagged as spam and maybe getting a domain blacklisted or your account dumped by an A/R service. It's another altogether to have Verizon and AT&T fielding a wave of angry calls from customers being billed by the byte for text messages they don't want (even if they signed up for them..).

    I think it's one of THE hot markets in 2009 and especially moving to 2010 and beyond. The US is just starting to catch up to Europe and Asia with mobile communications like SMS. Very exciting times ahead!

    Best,

    Brian
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    • Profile picture of the author Melody
      Originally Posted by LoudMac View Post

      Excellent post, Melody.

      This is an area that will see big growth in 2009 but the "postage due" nature of the medium makes it significantly different than email.

      It's one thing having an email flagged as spam and maybe getting a domain blacklisted or your account dumped by an A/R service. It's another altogether to have Verizon and AT&T fielding a wave of angry calls from customers being billed by the byte for text messages they don't want (even if they signed up for them..).

      I think it's one of THE hot markets in 2009 and especially moving to 2010 and beyond. The US is just starting to catch up to Europe and Asia with mobile communications like SMS. Very exciting times ahead!

      Best,

      Brian
      Brian -

      You nailed it - all the way around! SMS is huge outside of the US and has been for several years - bigger than ecommerce, in fact. The US is behind the curve on this trend but definitely catching up.

      Unfortunately, SMS, like email, has been the target of a great deal of spam sent through the old email to SMS gateways, because the scripts are cheap to buy, and easy to install - and you can mass load mobile numbers to them.

      Verizon and AT&T - which control more than 70% of the mobile market in the US have blocked these email generated messages.

      And for anyone that gets a spam message sent through an email gateway - contact your provider - if they are sent through an email gateway, they can usually be blocked without affecting your ability to receive true SMS text messages.

      Melody
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  • Profile picture of the author Steve Garratt
    Does the reciever pay for sms in the US then?

    I live in the uk and yes sms or "text" as it's become popularly dubbed by the young, is huge. The thing is that the cost of phone calls and sms is allways born by the sender unless you opt into a premium service that will charge you to recieve stuff or if you enable "Roaming" and recieve calls in a different country.

    As for not making it clear that a customer will get charged for anything let alone recieving sms is unthinkable. Who does that? Obviously many people I gather from this thread.

    Forgive my surprised look - I'm British lol.

    Steve
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    • Profile picture of the author Melody
      Originally Posted by howdo-i View Post

      Does the reciever pay for sms in the US then?

      I live in the uk and yes sms or "text" as it's become popularly dubbed by the young, is huge. The thing is that the cost of phone calls and sms is allways born by the sender unless you opt into a premium service that will charge you to recieve stuff or if you enable "Roaming" and recieve calls in a different country.

      As for not making it clear that a customer will get charged for anything let alone recieving sms is unthinkable. Who does that? Obviously many people I gather from this thread.

      Forgive my surprised look - I'm British lol.

      Steve
      There are different types of services available for marketing purposes - for the most part, true SMS/text services charge the advertiser, but a few are popping up that are using some newer ways to send real SMS marketing messages, that are 'flat rate', usually on a monthly basis.

      But in the US, we are just now starting to really see the adoption of flat rate pricing for RECEIVING text messages. Until recently, it has been a per msg basis to both send and receive - so texting was not cheap.

      But - things are a'changing!

      Melody
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  • Profile picture of the author IMChick
    (Ignore the troll, Melody started a great thread).

    This is a hot topic to watch. Unlike other markets currently using this service, a 'pay to play' cell message will probably be unsuccessful with US consumers because our cell phone plans are so different, and texting is an add-on service that many don't have.

    Thanks for the info. I'll be watching for new developments.
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    • Profile picture of the author Melody
      Originally Posted by IMChick View Post

      (Ignore the troll, Melody started a great thread).

      This is a hot topic to watch. Unlike other markets currently using this service, a 'pay to play' cell message will probably be unsuccessful with US consumers because our cell phone plans are so different, and texting is an add-on service that many don't have.

      Thanks for the info. I'll be watching for new developments.
      Actually, I've been in the mobile marketing sector for almost two years - and the market is exploding right now. During Q3 of 2008, for the first time ever, more people over the age of 30 used their phone for texting than making calls, and text ads have a 95% read rate - a bit higher than the average email ;-)

      But here's the big caveat on the ad read rate: 'multi media' ads - those really nice looking things that the big companies spend lots of money on? They get about 40% open/read rate!

      And I have to admit - I don't bother to click through to the web to see the whole ad - if it isn't in my SMS box, I rarely bother with it - too much time to load and read it!

      So until more people have full data services - plain old text messages seem to be getting the best results.

      Melody
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