November 14, 2012

Compliant vs. Non Compliant Text Message Marketing Campaigns

As regular readers know, text message is a young marketing channel that is growing quickly, as smartphone market share increases worldwide and consumers become not only more attached to their phones, but more open to communicating with brands via text message.

Marketers need to remember, however that, they are sending messages to their customers’ pockets – it’s an intimate form of communication that is tightly regulated and, as we’ve seen, strictly enforced.

Here’s an example of text message marketing done right:

The NFL team Carolina Panthers’ recently launched a text marketing campaign and, enjoying much success.

Like any business experimenting with text message marketing, the Panthers’ marketing department aims to drive one-to-one communication with this channel and figure out who their fans are and how to interact with them.

Of course, our readers know that federal marketing privacy regulations require that only those consumers who have explicitly opted-in to text message marketing messages receive those messages.

Our readers also know that the most successful text message marketing cmapaigns are those that adhere to customers’ stated contact preferences. That’s where NFL team Buffalo Bills’ text message marketing campaign has been less successful:

MediaPost reported yesterday that Florida resident Jerry Wojcik is suing the Bills for sending him “excessive” text messages. Wojcik opted-in to receive the messages – according to the terms of the campaign, he expected between three and five per week – but in fact received six and seven text messages per week in the weeks after he signed up.

NFL teams text message marketing campaignsWojcik argues the excessive text messages violate the FCC’s Telephone Consumer Protection Act (TCPA), which provides for up to $1,500 in damages per violation.

MediaPost reported that the Bills appear to have technically violated the TCPA, but “if there was ever a case to challenge the statutory damages, this would be it…if you’re willing to receive five messages, there’s no clear privacy violation from the sixth.”

At the very least, by not adhering to their consumers’ stated contact preferences, the Bills will have many dissatisfied customers on their hands.

And here’s another example of text message marketing violating the TCPA:

Last month, a Florida court considered a case of unsolicited commercial text messages sent by an adult nightclub owner to consumers in the case of Buslepp v. B&B Entertainment, LLC. The plaintiff argued he had not only never provided his cell phone number to the nightclub, nor provided prior express consent to receive text marketing messages, but he never even attended the nightclub. The court ruled the messages were in violation of the TCPA .

Text message marketing is a growing communication channel, but the legal landscape surrounding it is complicated and constantly evolving.

One way to take advantage of the opportunity while staying compliant with the TCPA and other marketing privacy regulations is to use a centralized contact governance system like Gryphon’s Core, that automatically ensures compliance of all outbound and inbound consumer communications for all marketing channels, protecting your business from violations, fines, and bad press.