On October 16, 2013, companies engaging in mobile marketing via automated dialing technology for sending promotional text messages or prerecorded marketing calls must comply with new Federal Trade Commission rules regarding implementation of the 1991 Telephone Consumer Protection Act (TCPA) (47 U.S.C. § 227). FCC wants to give consumers more ability to fend off unwanted telemarketing, so the consequences for non-compliance can be painful: the TCPA provides consumers with a private right of action against invasive telemarketers which would allow a court to award $500 in damages per call or text message, and to increase the per-message damage award to $1,500 if the violation is found to be egregious and willful.

The new rules have three salient features. First, companies who use automated dialing technology will now need to obtain express written consent from a consumer before making calls or sending text messages to that consumer. Written consent can be achieved by compliance with the federal E-SIGN Act, which allows a consumer to express written consent by sending an email, sending a text message, filling out a form on a website, pressing telephone keys in response to a prompt, or even by speaking if the consent is spoken into a telephone and digitally recorded.

Second, the marketing company’s request for consent must give consumers a clear and conspicuous disclosure of what they are consenting to; in other words, the form the company uses to request consent must explicitly tell consumers that they will be receiving automated calls or text messages if they give consent.

Third, the marketing company’s request for consent must ask a consumer to designate a specific telephone number for receiving automated calls or text messages.

Most mobile marketers already have an opt-in mechanism or form which their customers have used. If you fall into that category, you may be alright because your current practice may already comply with the new FCC rules. However, you should take a close look at your current opt-in form to make sure your company complies, because another aspect of the new FCC rules is that there is no longer an exception for what are called established business relationships. In other words, if your established opt-in practice is not in compliance, you cannot continue to send automated calls and messages to your existing subscribers after October 16, 2013, even if they have already agreed to accept your messages (and/or have not so far complained). While it is understandable that a mobile marketer might resist annoying its current customers by asking them to reaffirm their consent through a new compliant opt-in mechanism, it may be better to risk losing a few subscribers than to risk the liability that would come with continued non-compliance with the new FCC mobile marketing rules.