November 30, 2012
By Leonard Klie, Editor, CRM magazine and SmartCustomerService.com

FCC Clarifies Opt-Out Procedures for Text Marketing

The Federal Communications Commission this week ruled that sending a single opt-out confirmation message after a consumer opts out of receiving text messages from a company does not violate the Telephone Consumer Protection Act (TCPA).

With this ruling, companies will be able to send a confirmation message whenever a consumer asks to be removed from mobile text messaging campaigns. Equally as important, companies now have complete clarity on how to handle consumer opt-outs.

SoundBite Communications, a provider of customer experience management solutions, petitioned the FCC in February for a declaratory ruling on the matter after a number of lawsuits had been filed against several companies that use text messaging in their mobile marketing campaigns.

According to Jim Milton, SoundBite's president and CEO, as many as 20 class-action lawsuits had been filed by consumers against a number of firms in a variety of industries. Included among them were GameStop and Bank of America; both are SoundBite clients.

Several of those suits had been settled out of court, and fear was that ambiguity in the TCPA, which was written in 1991 to govern primarily phone and fax communications, could lead to millions, or even billions, of dollars in losses for the industry. "Somebody needed to step up on this issue," Milton says. "We felt it needed to be settled by the FCC and not in the courts."

SoundBite also established a broad effort, gaining support by groups such as CTIA-The Wireless Association, the U.S. Chamber of Commerce, the Mobile Marketing Association (MMA), the Council of Better Business Bureaus, and others, to raise awareness, establish a unified industry voice, and drive a positive resolution on the issue.

The FCC's ruling clarifies that the TCPA and industry best practices from wireless carriers, MMA, and CTIA, are in clear alignment.

Milton says the ruling is also consistent with other industry practices regarding phone and email marketing. "It's a best practice to confirm and acknowledge receipt of that opt-out [request]," he says. "It is the right thing to do."

Milton also acknowledges a sense of relief that the FCC ruled favorably on the petition. "We feel this is a great day for the mobile marketing industry, for our clients, and for the consumer," he adds.

"We are grateful for the FCC's quick action and decisive recognition that the consumer-friendly practice of sending one-time confirmation text messages is good public policy and consistent with the TCPA and consumer interest," said Monica Desai, a partner at Patton Boggs, the law firm that helped SoundBite with its petition, in a statement. "We are pleased the commission issued a favorable declaratory ruling. As a result of SoundBite's leadership, there is now a clear interpretation of TCPA, MMA, and CTIA rules, which reduces ambiguity and frees the industry to deliver an optimal consumer experience in compliance with stated rules and regulations."

"We are impressed with the leadership that SoundBite demonstrated to not only affirm opt-out messaging as a valuable tool for marketers, but also for coming to the MMA to rally its membership and to lock arms," said Michael Becker, managing director of MMA North America, in the statement. "This is a testament to SoundBite's leadership and those that came to support their petition for an FCC declaratory ruling that confirms messaging is valuable tool for marketing. By establishing a consumer preference model for mobile marketing communications, messaging best practices will continue to evolve and play an integral role for the marketing and carrier community."