Even though text messaging is commonplace, marketing companies still haven’t latched onto it as a vehicle to reach millions of cellphone users.
A major hurdle has been the ambiguity over a seemingly simple question: Can a business that receives an opt-out text message from a consumer send back just one more text confirming that opt-out? Or is that one text too many?
That question has turned into a legal headache for companies and the marketing firms that they hire to push their products and promote services via mobile phones.
Twitter Inc., American Express Co., and other major businesses were the targets of several class-action suits that claimed sending opt-out confirming texts violated federal law protecting consumers from mass marketing. Among those sued was Bedford software company SoundBite Communications Inc., which provides technology for Bank of America and other clients to conduct text-message marketing.
SoundBite petitioned the Federal Communications Commission to clarify whether the federal law does prohibit companies from sending consumers a text confirming their opt-out. On Thursday, the FCC ruled that SoundBite and other marketers can indeed close the loop with departing customers.
“Seems pretty simple, doesn’t it,” said SoundBite chief executive Jim Milton. “If you’re going to opt out of receiving text communications, you’d expect to receive a message confirming your message was received. You don’t want to leave a consumer hanging.”
The law in question is the 1991 Telephone Consumer Protection Act, adopted to shield consumers from mass telemarketing calls. The law prohibited companies from making automatically generated calls, or robocalls, to consumers on their mobile phones without prior consent; the FCC had previously said such contact applied to text messaging, too.
In the ruling this week, FCC Commissioner Ajit Pai said it was necessary to clarify that confirming texts are distinct from general marketing pitches.
“In regulation, as in sports, it is good to have clear rules,” Pai wrote, referencing a quote from a character in the cult movie classic “The Big Lebowski.”
“Hopefully, by making clear that the act does not prohibit confirmation texts,” Pai added, “we will end the litigation that has punished some companies for doing the right thing.”
“This will definitely eliminate a big barrier to companies for using mobile for marketing as well as for customer care,” said Milton, who pointed out that consumers must still expressly opt-in to receive any marketing texts from his company’s clients.