Earlier this week, Justin told us about the potential $90 million ruling against Simon & Schuster for sending unsolicited text messages promoting the Steven King novel Cell (which itself, ironically, is about the really, really dark side of SMS). The court decreed that the publisher violated the Telephone Consumer Protection Act (TCPA) because messages were sent through an automatic telephone dialing system. Now, legitimate mobile marketing service providers are stepping up to protect their industry–and to protect the integrity of a communication platform with which consumers really do want to be reached.

The company Ez Texting is spearheading lobbying efforts to the U.S. Federal Communications Commission, to protect mobile marketing technology companies from being sued due to the misuse of their services. It has begun an organization called the Mobile Advocacy Coalition, whose website, www.mobileac.org, includes information on how other mobile tech providers can become involved.

Ez Texting’s Shane Neman tells me: “Fax broadcasters and the [cellular] carriers have specific exemptions by the FCC as they are considered to be ‘mere conduits.’ However, SMS aggregators, providers, and software developers do not. We too are merely the technology providers, and yet still can be liable under the law because no specific exemption is exists for us.” Read the rest

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The government of Norway has stepped in to put a stop to many SMS plans that charge consumers an on-going premium after they purchase certain things such as ringtones and minor applications for their devices.  Through a crack-down on the industry and the people who regulate it, SMS content providers will be forced to be upfront with consumers about the cost of “on-going messaging plans” from here on out.  If all goes well, other countries, including the US and many European countries, will adopt the same regulation

Hoping to make the entire industry more transparent, the government is forcing providers to come clean about their subscription plans and advertising, as well as allow consumers to bar ongoing services from July 1, 2010.  Beyond that, new regulation will force consumers to verify their acceptance of certain plans twice under a new “double opt-in” policy that will soon take effect.

In Norway, the testing ground for the new policies, the Mobile Premium Services code, jointly created by government and the industry body the Communications Alliance, will require all premium SMS operators to register on a list, and could see repeat offenders fined up to A$250,000 (US$188,718) in the Federal Court.  Having a central registry of operators will make tracking and punishing offenders of the policies much easier and more effective than it has been in the past.  In addition, providers will be banned from dealing with operators not registered on the industry list.

This new code and subsequent policies will be reviewed for a 12-month period to see how everything plays out.  These kind of deceptive practices are ruining legitimate SMS marketing tactics and bringing bad light, one again, to SMS as an advertising medium that in reality is a huge asset to mobile marketing as a whole.

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Today two U.S. senators introduced legislation aimed at curbing unwanted text messages.

Called the “m-SPAM Act of 2009,” the potential law, introduced by Sen. Olympia Snowe (R-Maine) and Sen. Bill Nelson (D-FL), brings government intervention into the realm of mobile spam. Named similarly to the CAN-SPAM law that criminalizes email spammers, it’s especially important because–unlike email–text messages cost money to receive, as part of a data plan or on a message-by-message basis. “Mobile spam invades both a consumer’s cell phone and monthly bill,” Senator Snowe said.

While no one can object to the central idea of the proposed law–to prohibit marketers from sending messages to a “do not contact” type of registry–I hope the Senate treads carefully. Right now, the potential legislation suggests that every number on the Do Not Call registry also be off-limits to SMS senders.

This is not a good idea, because while nobody ever signs up to receive marketing phone calls, many consumers do sign up to receive SMS offers like coupons or sales announcements. By automatically making numbers on the Do Not Call List forbidden from marketers, consumers could be prevented from receiving the texts they actually want. Read the rest

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Remember the AT&T text-spam fiasco, which I said was especially egregious because it seemed the cellular company violated its own opt-in requirements? Well, the Mobile Marketing Association has launched an investigation–thanks to a complaint system that, frankly, is news to me.

If you ever receive a mobile marketing message that you think violates best practices and consumer privacy, click here. This is where you’ll find an MMA email address set aside for complaints, as well as a list of information you should provide when reporting unsolicited or inappropriate mobile marketing messages. The association will consider investigating–and possibly sanctioning–the offending party.

I heard about this MMA process today thanks to ClickZ, which interviewed new Chief Executive Mike Wehrs. One notable excerpt from the ClickZ article: “Complaints about the AT&T and ‘American Idol’ text promotion triggered an MMA probe within two hours. Wehrs contended that no federal regulators would ever respond that quickly.”

And I think that’s why mobile marketing should be as self-regulated as possible. Sure, major laws (such as an equivalent of the U.S. CAN-SPAM statute that applies to commercial email) should be set, if not to let consumers–and marketers–know their basic rights. At the same time, laws can sometimes be over- or under-reaching, or else merely pander to certain fears without offering true protection.

Thus the marketing industry should vigorously stick to agreed best practices, and require compatriots to do the same. We know the space best, we know the benefits best, and we know the detriments best. And like Mr. Wehrs said, law enforcement would never act as quickly as an industry association like the MMA could.

In the short term, I’m looking forward to seeing what comes of the MMA’s investigation into AT&T. More important, though, is how this investigation might help prevent future offensive mobile marketing campaigns.

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This week AT&T Wireless wasn’t about to let consumers remain idle about Idol.

To get people to tune in to the season premiere of TV’s American Idol, which it just happens to sponsor, the mobile carrier texted ads to past Idol voters and so-called “heavy texters.” This of course sparked outrage among recipients–as well as a debate in the New York Times between AT&T and Spamhaus spokespersons on whether the messages really were spam.

What seems to have slipped notice, however, is that AT&T seems to have violated its own regulations for commercial usage of SMS.

Last spring, the major U.S. cellular carriers revamped their restrictions on mobile marketing. These rules are important in the United States since no federal laws specifically address text-messaging abuse. Among these revisions was AT&T’s requirement that all recipients must agree to opt-in before they start to get marketing messages.

Judging from their angry and surprised customers, AT&T did not follow this rule.

Sure, consumers were not charged to receive the message. And there was an opt-out note along with the Idol push, telling people to reply STOP if they didn’t want to get future related texts.

But you can’t just follow 2/3, or 3/4, or even 99 percent of best practices and consider yourself compliant. Even if you do own the cellular network.

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T-Mobile has decided, effective immediately, that it will no longer require marketers and other senders of commercial, non-premium SMS to have double opt-in for their subscribers.

Double opt-in, in case you don’t know, is the process in which a marketer ensures that a subscriber really did mean to sign up to receive marketing SMS messages. Usually (including in the case of T-mobile) it means that after the consumer sends a keyword to a short code, the marketer sends the person message asking to confirm the subscription by texting back the word YES.

There’s two sides to this news. On one hand, Mobile Marketer notes that application program briefs will be much simpler, and in turn could result in quicker approvals of new short code programs. (Short code provisioning is a major issue for marketers, you may recall from a recent guest column.) And T-mobile was the last major U.S. carrier to drop the double opt-in requirement.

However, legitimate marketers know the importance of double opt-in; it’s even part of the Mobile Marketing Association’s best practices guidelines. Double opt-in ensures that people want to receive messages before they’re sent out. It’s a way to soothe consumer fears of getting SMS spam.

Well, best-practicers don’t need carriers or other authorities to tell them the most proper way to conduct themselves. They’ve been engaging in double opt-in longer than carriers had required it. So they can should still choose, on their own, to make double opt-in part of their campaigns. As a First Amendment kind of gal, I like the idea of letting the industry regulate itself, rather than impose censorship.

Meanwhile, those who say that double opt-in turned off potential subscribers now have nothing to blame when consumers don’t sign up for their messages.

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We’re all very familiar with the Mobile Marketing Association’s Best Practices (PDF file) regarding getting consumers’ permission before sending text messages. And the lengthy amount of time it takes to get a short code and campaign approved. Even though it sometimes seems like a real pain in the you-know-what, it turns out that all those guidelines and oversight serve a very useful purpose.

Timberland, (yes, the shoe company) had a class-action lawsuit filed against them for sending unsolicited text messages in 2005. As reported in the Chicago Sun Times, Jeffrey Weinstein, a business analyst from Logan Square received an unwanted text offer and decided to take a stand against text spam.

Without admitting any wrongdoing, Timberland has settled the lawsuit out of court, creating a $7 million fund for anyone who received an unwanted text message from Timberland.

The line in the sand has been drawn and I urge you not to step over it. Follow all guidelines regarding text messaging. Get permission before sending a single text message. Have your customers text in to sign up for your offering or use an online widget. Make sure that you use a clear opt-out process as well. All ethical and smart text messaging vendors will help ensure you follow these guidelines.

What do you think about text message spam? The lawsuit? Best practices?

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