FCC’S “PRIOR EXPRESS WRITTEN CONSENT” RULES TAKE CENTER STAGE

This is Part II of a blog series on Davis & Gilbert’s recent report, “Advertising Law: 2013 Lessons Learned & 2014 Practical Advice,” which explores the significant changes in the law relating to advertising, marketing and promotions in 2013, and suggestions for advertisers and agencies to think about and address in 2014.

By Joseph J. Lewczak, Partner, Davis & Gilbert LLP

The biggest news in mobile for 2013 was the revisions by the Federal Communications Commission (FCC) to its rules under the Telephone Consumer Protection Act (TCPA) to require “prior express written consent” in order to send a commercial SMS or MMS text to any wireless number using an autodialer (essentially any computer). Specifically, the consent must be in writing, signed and sufficient to show that:

• The consumer received “clear and conspicuous disclosure” of the consequences of providing the requested consent, i.e., that the consumer will receive future text messages by or on behalf of a specific seller;
• The consumer who received this information agreed unambiguously to receive these calls at a telephone number the consumer designated; and
• There was no requirement to sign it as a condition – directly or indirectly – of purchasing any good or service.

While a simple opt-in was all that was previously required to send commercial text messages to consumers (e.g., “Text ‘coupon’ to 12345 to receive a coupon good for 50% off your next purchase at ABC Store and to periodically receive information on future offers”), marketers now will need to obtain the prior express written (and signed) consent outlined above. Therefore, even where a consumer responds to an off-line offer or opts-in by sending a text, the marketer will need to send a separate text message, including the above disclosures, to obtain the consumer’s consent.

Of critical importance is the fact that the TCPA permits private lawsuits against telemarketers – with the potential of significant damages awards of up to $1,500 per violation. There already has been a number of class actions under the prior TCPA consent requirements.

Looking Ahead to 2014

Expect to see a number of class action lawsuits in early 2014 against marketers who failed to obtain appropriate consent.

Given the risk of the potential class action, strict compliance with the revised rule is critical. Advertisers that have not done so already (the new rule went into effect in October 2013) should review the steps they and their marketing agencies are taking to obtain consent and revise immediately if not in compliance. Do not be a test case.