Mobile messaging is a powerful and rapidly growing marketing channel that drives an estimated $8-12 billion in annual revenues, according to the Common Short Code Administration.

But on October 16, new provisions of the Telephone Consumer Protection Act (TCPA) took effect, introducing new restrictions on mobile messaging that have many marketers worried not only about how it might affect their campaign reach and open rates, but also whether it means the threat of fines and lawsuits.

The Act now places new, stricter requirements on the disclosures marketers must make to consumers when obtaining the opt-in express written consent required to send marketing SMS/MMS text messages or place marketing calls to a consumer’s mobile phone. (For a more detailed review, see this post from my colleague Becky Burr.)

Mobile marketers who follow MMA Best Practices or the CTIA Compliance Handbook have already been using opt-in written consent. Still, it remains unclear if it will be acceptable under the stringent new TCPA requirements. (An industry coalition has filed a petition to clarify whether or not pre-existing written consent will be accepted retroactively.)

Consent isn’t the only hurdle

As my colleague Doug Feit notes the risk associated with TCPA compliance centers on the critical phrase, “express written consent of the called party.” Court rulings have interpreted the definition of “called party” to mean the person you actually reach, not the person you meant to reach.

Consequently, if you send a text to a person who has given you written consent, but your message reaches someone else — either because the number now belongs to a different subscriber, or because you simply have the wrong number — you are in violation of the TCPA. This is why it is a concern:

  • Tens of millions of phone numbers are recycled every year; in 2011, the FCC reported almost 37 million phone numbers were reassigned to new users;
  • Up to 20 percent of customer records are linked to the wrong mobile number, according to a recent Neustar data analysis of businesses in a range of industries.

In short, your chances of reaching someone other than the person who gave you consent are high. With civil fines from $500 to $1,500 per infraction, the costs can quickly climb into the millions.

What mobile marketers should be doing (Hint: you should be, too).

Even with the changes in TCPA, some mobile marketers have not changed their practices at all. Others are following the MMA and CTIA guidelines for opt-in consent, despite uncertainty about whether the guidelines will meet new TCPA requirements.

Due to this uncertainty — and the potential financial risks associated with TCPA violations — we recommend a conservative approach to mitigate TCPA risk by:

  1.  Collecting opt-in express written consent from customers to receive SMS/MMS marketing text messages, conforming to the new TCPA requirements;
  2.   Verifying your Customer Relationship Management data to ensure that mobile numbers are still associated with the consumer who provided consent;
  3.  Cleansing your customer and prospect data, now and on an ongoing basis, by receiving regular updates of changes to mobile phone numbers — both confirming that a number is associated with a mobile phone, and verifying the identity of the current subscriber;
  4. Ensuring that your solution providers are also following TCPA best practices to help mitigate your exposure to TCPA risk.

Neustar offers a robust TCPA verification solution based on the most comprehensive and accurate consumer contact data available. Drawing on data from more than 250 authoritative sources, Neustar’s solution incorporates the most comprehensive wireless phone data available, updated every 15 minutes to ensure accuracy and currency. This data allows you to determine whether a given phone number is wireless, for your marketing call campaigns, and to verify the current subscriber, so that you can be sure the consumer who provided opt-in express written consent still owns the number.

Neustar’s solution an invaluable tool to help mobile marketers meet the challenges of complying with the new restrictions of TCPA and go back to focusing on response rates, messaging, offers — and the undeniable marketing value of mobile messaging.

For a more detailed presentation on the challenges TCPA presents to mobile marketers – and our recommendations on how to respond – watch our recent Webinar.