by Lucky Balaraman
Executive Director, The Magnum Group
If you employ text marketing (i.e., marketing with text messages), then it is vital that you follow the rules of the Telephone Consumer Protection Act (TCPA), unless you actually like being fined millions of dollars.
The possibility of being fined is not distant but very real. Case in point: Jiffy Lube.
Jiffy Lube failed to follow one of the TCPA’s cardinal rules: to send promotional text messages only if the recipients have knowingly agreed to receive such messages.
What Jiffy Lube did was pull 2.3 million mobile numbers off of their invoices, then blast those customers with a message asking them to join an ‘E-Club’ with a 45% discount on their next oil change if they joined.
Jiffy Lube was fined $47 million by the District Court, Southern District of California for this, because they had not obtained prior consent of the concerned customers for sending them that message. (In the image below, “Heartland” refers to a Jiffy Lube franchisee.)
Update: Papa John’s Pizza on the Block
Papa John’s Pizza, instead of serving soup, is now swimming in it.
In 2010 its franchisees sent 500,000 text messages offering discounts and other promos to existing customers, some customers receiving dozens of messages. Unfortunately for Papa’s, the Company did not get specific permission from customers to send them text messages. A class-action lawsuit was filed soon after, asking for $500 worth of damages for each sent text message.
On November 9, 2012, in Seattle, Wa., the lawsuit was certified by U.S. District Court Judge John C. Coughenour, which, if won, could result in a 500,000 x $500 = a $250 million fine for the pizza company.
Read more:
The Rules
1. Get subscribers to opt in explicitly. This in compliance with the TCPA text:
“The TCPA, however, prohibits companies from using automatic telephone dialing systems to make calls to cell phones unless the owners have consented.“
2. Include required information in your signup form. That information is:
- Possible Messaging Costs: Within one line above or below the call to action, print, “Message & Data Rates May Apply.”
- Proposed Messaging Frequency: Include a phrase like, “ Max. 6 mssgs/month.”
- Instructions to Opt-Out: This is typically, “Text STOP to 12345 to opt-out.” or
- Instructions to Get Help with the Messaging Program: This should be something like, “text HELP to 12345 for help.”
(For subscription-related programs, requirements a – d above must be repeated in the confirmation message you send the subscriber when he signs up.)
e. If your sign-up form is for a sweepstakes campaign, you should Include a URL to the rules of the sweepstakes.
Those are the simple rules you need to follow to make your text marketing campaign legally compliant.
Incidentally, if you would like us to manage your text managing campaign, merely send me a message from here for a same-business-day reply!
To your text marketing success,
Internet Marketing by Email
Internet Marketing
{ 43 comments… read them below or add one }
I really appreciate your post. thanks so much for sharing it and I am going to follow your rules.
Smart move on your part. Most text marketing practitioners are unaware of these rules and the deadly consequences of not following them.
Liked your beautiful text massages service. Thanks for the share with us..
Great post! Thanks for creating this awareness..Its really very useful..!
Nice article..As the popularity of mobile phones has surged in the early 2000s, frequent users of text messaging began to see an increase in the number of unsolicited (and generally unwanted) commercial advertisements being sent to their telephones through text messaging. This can be particularly annoying for the recipients because, unlike in email, some recipients may be charged a fee for every message received, including spam.!
I think SMS ads are really a high risk proposition, given the possibility that ads will be sent to consumers who haven’t consented. It’s doable with a clear opt-in, but companies seem to screw it up.If these big companies can’t do it right, there’s some disconnect going on..:-)
Your article is highly commendable Lucky.. I am looking forward to following these rules..
Aah..These corporations are just as vulnerable. When all 100 of the Fortune 100 are involved in legal proceedings, you know you probably can’t avoid e-discovery at some point in your career. And when your company gets hit with a lawsuit, you’ll likely have to retrieve and reveal employee text messages relevant to the case, along with other newer forms of communication, such as instant messages and the words, pictures and video from social networking sites, blogs and wikis….
Yes, Fred. The more money a company has, the more likely it’ll be sued for something or the other!
Good article.. Yes the Jiffy Lube scam is one of a kind and it sends a precaution to other firms to follow text messaging laws..
Indeed, Brian!
Always love reading your blogs.. They are very informative and send a message..Thanks for sharing and keep it up!
Will do, Vishal!
Completely agree with your points Lucky and yes Jiffy Lube recently made the costly mistake of not strictly abiding by the regulations of the TCPA by initiating a SMS marketing campaign without getting opt-in consent from the recipients of the text message and the company used phone numbers that had been provided on invoices from previous sales to offer a 45% discount on oil changes.While Jiffy Lube’s offer was great, pulling phone numbers from invoices doesn’t constitute opt-in consent and it turned out to be a costly mistake for the company. For violating the TCPA, and led to the heavy fine..!!
Yep!
Thanks for sharing the TCPA protocols..Hope everyone abides by those laws..
I hope so too!
Appreciate your post Lucky..
You cannot run a SMS marketing campaign targeting them without permission. It does not matter how good your intentions are or how good the offer is to the recipient. The point here is simple: Without explicit consent, you are violating the TCPA!
Absolutely, Mohammed!
Wonderful Blog! I will surely contact you for any sms marketing campaigns..thanks
I look forward to hearing from you, Maria!
Many people are unaware of these regulations and need to be educated on this to avoid severe consequences.. Your blog is a great way of spreading this word..:-)
Glad you thought it useful, Karthik…
I wanted to let every one know of this company that sells cell phone n umber lists for all us marketers that use our laptops to send mobile marketing adds.
http://www.mysurvivalbible.com/text_marketing
I like your site and thought some may be interested thank you
Chase, those lists are likely to get any buyers into a peck of trouble. The whole point of this post is that if you send text messages to cellphone users without them knowingly opting in for such messages, YOU WILL BE FRIED!!!
There is big reach in text messaging, and audiences are already opted-in.
Don’t worry about having to deal with fragmentation. Also the demographics of this consumer base are not purely teens or twentysomethings; lots of other demographics opt-in for SMS content as well. Anyway this was a great article! Thanks for sharing.
Kristen, you can segment your subscribers into different lists by providing different signup codes, for instance, “text list1 to 12345″, “text list2 to 12345″, etc.
The text message campaigns that perform best are those with a direct and simple call to action. Relevance is paramount – relevant ads are effective and memorable, especially when inserted into opt-in content. So just make sure they are relevant to whom you are advertising to
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Words of great wisdom, Greg!
I agree with your comment, Gerard. A lot more people nowadays are using texting as their main way to communicate so SMS advertising should be ever-growing in my opinion. Nice article! Bookmarked and shared!
Thanks, Jenn!
My tip to add is that you should also consider the social, financial and tech savvy profile of the audience you want to reach, and target accordingly. If you consider only one of these dimensions, your advertising will be wasted on consumers who either can’t use your product or can’t hear your message.
How very true, appreciate that input, Gina!
Wow, I can`t believe that Jiffy Lube was fined $47 million because they did not obtain prior consent of the concerned customers for sending them that message. That`s crazy!!!
Crazy but true.
You have some great rules listed here. I am also great full that you provide services for a text managing campaign AND that you are willing to reply within one day
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Desi: If we don’t reply in one day, you can bet competitor will!
Noooo I don`t want to be fined millions of dollars!! Lol. I will definitely be following the rules you have outlined here! lol.
Yolanda: Smart thinking. But are you sure you don’t want to be fined? How about one million $?
So, if I have a company constantly sending me messages and there is no option to text STOP, to have the messages stopped, can this company be sued and who would sue them… because this does happen to me.
Hi Bing. Yes, you could be sued by message recipients organized by voracious lawyers into a class. That’s what happened to Jiffy Lube… it was a class action suit, and you know how those things go
Well I found this article really helpful because I wanted to start sending out SMS ads but I wasn’t sure of any of the legalities of it. So I`m happy I came across this post!
Hey Lucky, great article. I truly enjoy reading your blog because I learn so much. Ive often wondered about SMS ads and what was legal and what wasn’t. I typically find them so annoying but if I had a business I can see why it`s crucial to send them out. Thanks for the great info! – Leah
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