InfoLawGroup partner and SMS marketing legal expert Jamie Rubin's slides from Signal's July 10, 2013 webinar, Everything You've Ever Wanted to Know About SMS Marketing.

1. Text Message Campaigns – Applicable Laws & Guidelines
• Telephone Consumer Protect Act (“TCPA”) governs sending of
text messages
– Law is now clear: text messages are “calls” under the
TCPA
• Mobile Marketing Association (“MMA”) Guidelines
– Not just “guidelines”- major carriers require compliance
– Opt-in requirements
– Required disclosures
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2. 2
 Requires express consent prior to sending any text message
 Typical methods for obtaining the required authorization include:
 Web sign-up forms
 Text-in to a designated shortcode
 All material terms of the offer should be presented at the time of authorization so
that consent is adequate
 Includes private right of action and statutory damages ($500 to $1500 per text).
This is heavily litigated.
TCPA

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REAL WORLD EXAMPLE
August 2012: Heartland Automotive Services
Inc. (a Jiffy Lube International franchisee)
agreed to pay between $35 million and $47
million in cash and coupons for services in
order to settle a class action lawsuit related to
a “special offer” text message sent allegedly
without consent.
In re JIFFY LUBE
INTERNATIONAL, INC.
TEXT SPAM LITIGATION

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REAL WORLD EXAMPLE
Timberland’s $8M Error
Text messages about Timberland sale sent to
thousands of consumers
Consumers did not opt-in
Class action settled Sept 2008 for $7,000,000
in damages
Additional $1,750,000 to counsel
ALSO, Timberland must set up training and
compliance checks

5. MMA: Requirements for Calls to
Action and Opt-in Management
There are specific disclosure and opt-in
requirements depending on the type of campaign at
issue:
–“Standard rate” or “premium rate” program?
–One time message or recurring message program?
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6. MMA: Required Call to Action Disclosures for all Campaigns
– Identify the sender
– Describe the campaign and the frequency of the texts to be
received
– Include the opt-in key word, if applicable
– Include “MSG & DATA RATES MAY APPLY”
– Include “TEXT HELP TO <SHORT CODE> FOR HELP”
– Include any other material terms (e.g. carrier or device
limitations)
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7. MMA: Additional Disclosures
 Additional Call to Action disclosures for recurring message
campaigns
– TEXT STOP TO <SHORT CODE> TO STOP
 Additional Call to Action disclosures for premium rate campaigns
include:
– The applicable fees (must be in the first line of the call to action)
– The subscription term (should not be longer than one month)
– Any disclosure that could affect the functionality, features or
content (e.g. carrier or device limitations)
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8. The Opt-In Process
• No text should be sent unless the consumer opts-in
– Single Opt-in Required for Standard Rate Campaigns
– Double Opt-in Required for Premium Rate Campaigns
• Double Opt-in requires consumer reply back to the text message indicating their
desire to opt-in, e.g. “Reply YES to opt-in”
– If no response is received, there is no opt-in: DO NOT send any further text
messages.
• Confirmation message required for Premium Rate campaigns and Standard Rate
Recurring Message campaigns
• If eighteen (18) months elapse without sending a text, the opt-in expires
• The opt-in applies only to the specific campaign for which it was received
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9. Additional Message Requirements
• MMA has specific requirements for Confirmation Texts
(e.g., “welcome” texts)
• Recurring Messages have additional requirements including sending
monthly reminders that include information on fees, if any, and that
“msg & data rates may apply”
• Consider Recycled Numbers
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10. The Opt-Out Process
• The opt-out instructions must use the word “STOP” in ALL CAPS to
indicate an opt-out (e.g. Reply STOP to cancel)
– But any response indicating a desire to opt-out (QUIT, CANCEL, etc.)
must be honored.
– Periodically scan (at least every thirty days) to look for these types of
opt-out requests, and then opt that consumer out
• The opt-out must be automatic
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11. Recent Real World Examples
Class actions filed for sending final confirmatory message after consumer sends
opt-out request. It’s an MMA requirement but….:
•Jaber v. NASCAR - First Amended Complaint filed on December 8, 2011
•Moss v. Twitter - Settlement likely reached (a voluntary dismissal was filed, and the court entered
the dismissal on July 13, 2011)
•Ibey v. Taco Bell Corp. -- U.S. District Court for the Southern District of California dismissed on
June 18, 2012, holding that a single, confirmatory opt-out text message does not violate the TCPA.
But . . . At least one additional lawsuit filed since this dismissal.
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12. REAL WORLD EXAMPLE
• Settlement of NBC (Apprentice) and FOX (American
Idol) Text to Win Sweepstakes Lawsuits
– Consumers could enter by sending a text message subject to a
$0.99 premium charge or by filling out a free online entry form.
– Plaintiffs argued that the sweepstakes were unlawful
(notwithstanding the free method of entry) because individuals
didn’t get anything of value for the money they paid to enter, other
than the opportunity to win prizes.
– Settlement: 5 year injunction barring them from offering
sweepstakes in which entrants must pay premium text message
charges without receiving something of comparable value to the
charges in addition to the entry.
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13. Text Message Campaigns: Additional Red Flags
• Premium text message campaigns
• Sweepstakes entries via text
• Campaign directed to children
• Potential interaction with Do Not Call if
company does any direct phone marketing
or obtains opt-ins via telephone
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14. Text Message Campaigns Key
Takeaways• Express, prior, written consent must be obtained for EVERY text
message sent to a consumer
• There are detailed requirements for all text message campaigns; they
may not be fun but they must be followed
• Offer a free method of entry in any text message sweepstakes for
both standard and premium rate campaigns
• Keep accurate opt-out records and make sure to honor opt-outs – no
matter what term is used
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