If you’re sending out bulk messages in the US, you need to read this post.
Starting this Wednesday, October 16th, 2013, companies that send bulk messages in the US should be aware of the new FCC regulations on SMS SPAM. Here’s a brief summary of the new changes:
The “Established Business Relationship” (EBR): Previously in the US, proof of an “established business relationship” was sufficient enough to send promotional messages to existing customers about other products. According to the new changes, businesses can no longer send messages to their customers about other promotional items unless it’s expressly outlined and can be proven in the agreement form.
Elimination of Established Business Relationship Exemption.
In this Order, we amend our rules to eliminate the established business relationship (EBR) exemption for prerecorded telemarketing calls.
54) Eliminating the established business relationship exemption will be a burden to the calling telemarketer because the calling party will not be able to rely on the EBR as its form of prior express consent. That burden is mitigated because the prior express written consent requirement can be fulfilled using electronic measures including those described in the E-SIGN Act. Securing written consent using electronic measures relieves the calling parties from the task of securing handwritten documentation and handwritten signatures.
55) This reasoning applies equally to small entities. Moreover, with the increasing use of cell phones, the burden of eliminating the established business relationship exemption on telemarketers is further diminished because the EBR never applied to robocalls to cellphones.
56) In addition, because the FTC’s TSR already imposes a prior express written consent requirement for telemarketing calls and does not recognize an EBR, many entities have already implemented steps to fulfill this requirement, thereby reducing the burden associated with the rule the Commission adopts in this Order.
Identification, Consent, and Unsubscribe: The new regulations require that identification of the sender, prior consent, and a working unsubscribe system are mandatory for all senders. Be sure to include a “Reply STOP to Opt-Out” in all of your messages and clearly identify your name or company name. If you currently do not have consent from your customers, you must receive written or electronic signatures before sending your next message. You can also follow the example of television station WVVA and send an email along with a blog post for more information.
Conclusion: The main thing to take away – you can’t depend on EBR to send promotional SMS. Most companies are already following Australian rules for identification and consent; however, the changes to EBR could impact hundreds of SMS senders in the US.
Additionally, it’s imperative that you have consent from all of your customers before sending. Otherwise you could be fined thousands of dollars for sending unsolicited messages. The only way to protect your company is to read the SMS rules in your country before sending messages. For specific information on SMS SPAM laws in the US, visit Bloomberg Law, the FCC website, or ACMA guidelines.