Restricting Upload Lists, and How it Protects Our Customers

A common question we get asked is if we provide text club subscribers to our clients. The simple answer is that we do not upload lists of subscribers, and this post will help you understand why it is in your best interest to follow proper opt-in procedures.

What an Opt-In Really Means

In the United States, it is illegal to send an unsolicited message to an individual unless they have explicitly opted in by providing prior express consent. As simple as that sounds, a common misconception around receiving written consent is that customers need to physically sign their name to provide it. Luckily, this is not the case. In order to fully understand the opt-in process through the eyes of the regulators who could potentially stop your SMS campaigns, let’s break it down a bit.

To initiate the process of opting-in to a text club, a consumer would typically fill out a form online or text an initial keyword to a short code. In compliance with wireless carrier’s guidelines and the Telephone Consumer Protection Act (TCPA), Mobivity asks subscribers to go through a double opt-in process. This means that, while texting a location-specific keyword to a short code dictates their wish to become a text club subscriber, they are sent a text message that asks them to reply with Y or YES to confirm their subscription. By replying Y, the person is giving an electronic signature, which serves as written consent to participate in the text club. Depending on the specific campaign, a consumer could also give their consent through email, keypad touch, or voice recording.

The TCPA and Wireless Carrier Guidelines

Up until 2013, when the new rules surrounding SMS and the TCPA went into effect, companies only needed to adhere to the wireless carrier’s guidelines, which focus on protecting the individual end user. Wireless carriers don’t want text messages to end up like email, where companies can fairly easily send spam to users. Companies must get permission from wireless carriers to send out mass text messages from a short code, and the guidelines provided by the wireless carriers ask brands to disclose how to opt-out on the same page where consumers opt-in. Wireless carriers perform periodical audits of brands that are using short codes to ensure they are adhering to their guidelines. If they find a company who is not following their regulations, they may shut down that short code.

Today, brands must not only comply with the wireless carrier’s regulations, but also with the TCPA. The TCPA is federal law that restricts telephone solicitations and the use of automated telephone and SMS equipment. It states that a person must give prior written consent before receiving text messages from a business. If companies break this law, they risk being sued by unhappy text club subscribers. The penalty for sending an SMS message to someone who has not given consent by opting-in to your text club is a fine that can range from $500-$1,500 per phone number, per text message sent with no cap on total damages. When you think that any given text club could have thousands of subscribers who could receive a text message weekly, improper handling of this act could be a very costly blow to your brand.

[The TCPA] states that a person must give prior written consent before receiving text messages from a business. If companies break this law, they risk being sued by unhappy text club subscribers.

Protecting the Best Interest of Our Clients (And Their Customers)

Occasionally, you may hear of someone selling impressions. This means that they would essentially sell a company a list of text club subscribers. This is an all around bad idea. First, these people will not have given written consent to be on YOUR text club list, and therefore you’ll likely have a lawsuit on your hands. Even if they gave consent to join an initial text club, and you’re paying for the transfer to yours, those opt-ins are not sufficient in the eyes of the law. And second, why would you want to send offers to people who are not engaged with or care about your brand?

In general, Mobivity does not allow upload lists in an effort to protect our clients from legal violations. We do this in keeping the best interest of our clients, and their customers, in mind. The last thing we as a company want is for one of our clients to be at risk of violating the regulations and guidelines set out by the TCPA, and risking a potential lawsuit against them.

However, there is a specific circumstance when we will allow upload lists. If a company has already built up their subscriber database, but for some reason needs to switch short codes, we can transfer their list over to a new short code. However, we do ask our clients to provide proof that they had previously received prior express consent from those subscribers. Before implementing a new short code, a text message from the old short code is sent out notifying subscribers that the program’s short code is changing, and provides them instructions on how to opt out if they wish. Mobivity knows to wait 48 hours before sending any messages through the new short code, to ensure subscribers have had reasonable time to opt out. We also include a reminder on how to opt out in the first message sent from the new short code. Mobivity takes all these meticulous steps so we know we can fight any lawsuit that comes your, or our, way. We help our clients work within the correct guidelines to protect them from legal repercussions, and to protect their clients from being spammed.

Loyda Drew

Author Loyda Drew

Vice President, Product Operations

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