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SMS Marketing Industry News

New TCPA SMS Laws Drive Industry To Insanity

Oct 18, 2013

Like many of you that are reading this post, I’m just now starting to piece together what the hell happened during the last two weeks. I know one thing though, I will always hate October 16th, as this day will forever be the day that brought the biggest shit-storm we’ve ever seen in SMS marketing history. Interested in understanding the TCPA as it applies to text message marketing? Download our guide here.

The shit-storm started early in the morning on September 26th, 2013. While I normally awake to a few voicemails everyday, these voicemails on September 26th were different. These voicemails were from clients, and they sounded panicked, the kind of panic that makes me panic. I immediately start returning calls, and I come to find out that they’re all panicking about the same issue, an October 16th deadline to re opt-in all their SMS subscribers.

This was new information to me, and I ask them where they’re getting this information from, and they all point me to an article in MobileMarketer that came out that morning titled Many marketers unprepared as deadline looms for new SMS guidelines. I quickly flip open my laptop and start reading the article. As I read the article, a specific section stands out to me, and I quickly realize where the panic is coming from.

TCPA October 16 - SMS Marketing

While I’m pretty sure Michael was advocating that a mobile database be reviewed, and any database that doesn’t comply with the new TCPA guidelines, be re opted-in, this was far from how brands were interpreting his comments. Brands I spoke to were interpreting his comments as anyone with an SMS/MMS program should re opt-in their entire mobile database to comply with the new TCPA guidelines. Big difference!

Before I continue this story, it’s a good idea to clarify what was actually going into affect on October 16. To put it simply, beginning on October 16th the TCPA would make it mandatory for businesses to receive “prior express written consent”, before they could send text messages to customers. They also included some useful stuff like the fact that consent had to be “clear and conspicuous”, which means that a brand couldn’t trick consumers into giving consent, or mislead them about what they were giving their consent to. All good stuff in my opinion. Oh yea, they also made it very clear that come October 16th, brands couldn’t require this consent as a condition of purchasing any goods or services. Make sense right?

If you’re a customer of Tatango, you may be asking yourself right now, if Tatango knew about these changes coming on October 16th, 2013, why didn’t they tell us? Funny story, we did tell you, and unlike a lot of other SMS providers, we told you about these changes when they were announced by the FCC way back in early 2012. You can read the blog post here.

The best part, Tatango has always required brands to gain prior consent before text messaging customers, even if not required by the TCPA previously. I’d like to say we could see the future, but really us requiring brands to get prior consent before using Tatango to text message their customers, was our way of making sure that we weren’t allowing text message spam to be sent through Tatango. So for brands using Tatango to run their SMS marketing campaigns, this pending October 16th deadline was a non-issue, as they were already following the new TCPA guidelines, before they were even developed.

Then shit really hit the fan on September 30th at 8:56AM PST, as SMS subscribers that had previously opted-in to receive Target text messages, were sent the following text message from Target, asking them to re opt-in.

Target SMS Marketing TCPA Compliance

What was interesting about this re opt-in message from Target was the timing. If Target, or their SMS provider were aware that their mobile database wasn’t collected properly under the new TCPA guidelines, don’t you think they would have started this re opt-in process months, or even a year in advance, not 16 days before the “deadline”? That combined with that fact that this re opt-in message was sent only 4 days after the article in MobileMarketer was published, leads me to believe that the article in MobileMarketer got someone’s attention at either Target or their SMS provider.

While we’ll never know if Target actually needed to re opt-in their entire SMS subscriber database, or they were mislead to think they needed to, this set off a chain reaction with other brands, much like lemmings running off a cliff to their death following the lemming in front of them. You can see some of the brands below that followed Target’s example and started to re opt-in subscribers, with many I’m assuming not even reading the TCPA, just following the lemming in front of them.

Kohls TCPA Compliant October 16th SMS Message   Simon Malls TCPA Compliant October 16th SMS Message

Dollar General TCPA Compliant October 16th SMS Message   OfficeMax TCPA Compliant October 16th SMS Message

Arby's TCPA Compliant October 16th SMS Message   Macy's TCPA Compliant October 16th SMS Message

Famous Footwear TCPA Compliant October 16th SMS Message   Victoria's Secret Pink TCPA Compliant October 16th SMS Message

Chipotle TCPA Compliant October 16th SMS Message   Michaels TCPA Compliant October 16th SMS Message

Pizza Hut TCPA Compliant October 16th SMS Message   Victoria's Secret TCPA Compliant October 16th SMS Message

Kmart TCPA Compliant October 16th SMS Message   Boston's Pizza TCPA Compliant October 16th SMS Message

As you’ll see from some of the SMS messages above, some brands didn’t start this re opt-in process until only a few days before the “deadline”. Either these brands or their SMS providers were asleep at the wheel when it came to the new changes being implemented in the TCPA, or the MobileMarketer article combined with Target’s actions forced all of these brands to just follow suit, no matter if their SMS subscribers were previously collected properly under the new TCPA guidelines or not. While I have no insider knowledge about the SMS campaigns above, I suspect it’s the latter of the two.

Once these SMS messages started hitting customer’s mobile phones, the entire mobile marketing ecosystem went completely insane. Brands running SMS campaigns at that point didn’t even care about what the TCPA was, or what the new rules said, they just wanted to follow what other brands were doing, and re opt-in their entire SMS database. As more brands took this lemming approach, the problem continued to compound, forcing many SMS providers to throw up their hands in frustration and let brands re opt-in their SMS subscribers, because at the end of the day the customer (the brand in this case) is always right…. Right?

Now that October 16 has passed, the insanity seems to have come and gone. Obviously things are different now in SMS marketing, as the TCPA now requires “prior express written consent” for brands to text message their customers, but we’ve known about this change for over a year now, so it shouldn’t come as a surprise to anyone. Prior express written consent in my opinion should have been implemented years ago, but I’m glad to finally see it as part of the TCPA now. As always, if you have questions about the TCPA, or anything about SMS marketing in general, contact us, we’d love to help, or at the very least help point you in the right direction.

 


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