FCC Adopts Stricter Rule for Mobile Message Marketing

The U.S. federal law known as the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. § 227, regulates telemarketing activities, including the use of autodialing systems to initiate unsolicited telemarketing voice calls and mobile messages (including text and multimedia messages).  The Federal Communications Commission (FCC) recently modified its rule under the TCPA to provide that, effective October 16, 2013, mobile marketing messages can only be sent with the prior express written consent of the consumer.  The new rule has eliminated the so-called “established business relationship” (EBR) exception under the previous rule that allowed marketers to initiate telemarketing calls and messages to customers without prior consent.  With these changes, the FCC has harmonized the rule under the TCPA with the telemarketing sales rule of the Federal Trade Commission (the latter specifically regulates prerecorded telemarketing voice calls).

Under the new FCC rule, a consumer’s prior express written consent may be obtained via e-mail, website form, text message, telephone keypress, voice recording, etc., provided that the marketer can demonstrate (1) that the consumer has expressly agreed to receive marketing messages from a specific marketer at the consumer-designated mobile number (which number should not be pre-populated by the marketer in the consent form) and (2) that the consumer has been informed that consent is not a condition of purchasing any good or service.

Essentially, to comply with the new FCC rule, mobile marketers must ensure the consent form they use includes express language reflecting the above. 

The new rule applies to mobile marketing messages sent on or after October 16, 2013.  It is important to note that if a consumer consented to receive mobile marketing messages before October 16, 2013, but the previously obtained consent does not meet the requirements of the new rule, the marketer must obtain new consent that satisfies the new rule prior to sending new marketing messages to that consumer.