[Important Notice] Prior Express Written Consent Required For SMS Used For Solicitation Purposes & New Rule For Handling Stop Confirmation Message

Please be informed that a revised rule under the Telephone Consumer Protection Act (TCPA) goes into effect on 10/16/13 that will require “prior express written consent” for texts made to cell phones for solicitation purposes. For informational texts and other non-solicitation texts, the existing “prior express consent” standard will continue to suffice. For example, the new requirement does not apply to purely informational or transactional calls or messages, such as sending a link to a web site, flight updates, surveys, or bank account fraud alerts, however an informational text that includes an upsell - such as a flight update followed by an offer inviting the consumer to upgrade to first class - would require written consent. There is limited guidance on what constitutes a solicitation, but to paraphrase the FCC, "if the text, notwithstanding its free offer or other information, is intended to offer property, goods, or services for sale in the text, or in the future, that text is an advertisement."

Providers of text message programs are advised to look at the content of their programs and determine whether they are sending messages for solicitation purposes. If they are sending text messages for solicitation purposes, then they must meet the “prior express written consent” standard. The revised rule defines "prior express written consent" as a signed written agreement that clearly and conspicuously discloses to the consumer that:

• By signing the agreement, he or she authorizes the seller to deliver, to a designated phone number using an automatic telephone dialing system, telemarketing text messages; and

• The consumer is not required to sign the agreement or agree to enter into it as a condition of purchasing any property, goods, or services.

The required signature may be obtained in compliance with the E-SIGN Act, including via an e-mail, website form, text message, telephone key press, or voice recording.

If the provider is sending solicitation messages, they will only be protected if they obtain opt-in with a full signature (in compliance with the E-SIGN Act) with the clear disclosures above. The FCC defines clear and conspicuous as “apparent to the reasonable consumer, separate and distinguishable from the advertising copy or other disclosures.” In this case, traditional opt-in mechanisms are insufficient, as a full signature would be required for opt-in.

We are not experts in obtaining electronic signatures, so we recommend you consult with your own legal team to determine how best to create an opt-in system that provides the required disclosures under the revised TCPA rule, and captures an “prior express written consent” opt-in for your messaging program.

More information on the E-Sign Act can be found at: http://www.gpo.gov/fdsys/pkg/PLAW-106publ229/pdf/PLAW-106publ229.pdf

In addition, a declaratory ruling by the FCC confirmed that sending a single, final opt-out confirmation message does not violate the Telephone Consumer Protection Act. Mobile content providers that wish to comply with the scope of this ruling may send no more than one message in response to users' STOP requests. This means that STOP commands should be treated as STOP ALLs, unsubscribing users from all programs on a short code. Please discontinue the use of STOP Menus to comply with the FCC ruling.

Please contact the Account Management team at [email protected] for any questions.

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