The Federal Communication Commission’s new requirements for “prior express written consent” to send sales or marketing messages to wireless devices goes into effect on October 16, 2013. This is not new for us mobile marketing veterans at Genesys | SoundBite, as we have been operating pursuant to this standard since 2009, when the Federal Trade Commission (FTC) mandated that all sales and marketing calls require express written consent. This FCC prior express written consent requirement, announced in February 2012 (the “February 2012 Order”) was intended to align the FCC’s regulations with those of the Federal Trade Commission (FTC), extending the FTC regulations on telemarketing calls made by wireless carriers and other industries who are currently not subject to FTC jurisdiction.

As you can imagine, this is not as straightforward as it may seem. There has been much industry discussion on the specific language required in the express written consent capture and provisions for grandfathering in existing subscribers. Ultimately, marketers, lawyers, and communication vendors have the responsibility to interpret what we believe the FCC intended in the February 2012 Order. As of this blog posting, the CTIA is drafting a Petition for Declaratory Ruling in this matter, which has the potential to clarify this updated regulation, but in the meantime, buckle up, because here we go again.

Here are a few main points to keep in mind:

  1. Express written consent is required for all telemarketing and sales calls to wireless lines and for prerecorded calls to residential lines.
  2. The FCC and courts have ruled that an SMS/MMS message is a call under the TCPA.
  3. Express written consent databases need to be maintained and kept up to date.
  4. For all opt-in phone numbers collected after October 16, 2013, new language must be included in the express written consent capture.

As with most recent regulatory requirements related to our industry, there seems to be a level of uncertainty and ambiguity. Our industry leadership and compliance best practices have led the way in the past, and we will do no less this time around – government shut down or no shutdown! Please feel free to reach out to your Genesys | SoundBite representative with any questions. Or contact us to start building your compliant express consent database.

Disclaimer – John Tallarico is not an attorney and the views stated above are not intended as legal advice, guidance or opinion.