Download FCC Comments - Mobile Marketing Association

Before The
FEDERAL COMMUNICATIONS COMMISSION
Washington, DC 20554
In the Matter of
)
)
Rules and Regulations Implementing the )
Telephone Consumer Protection Act of 1991
)
CG Docket No. 02-278
COMMENTS OF THE
MOBILE MARKETING ASSOCIATION
The Mobile Marketing Association hereby submits its comments on the Notice of
Proposed Rulemaking (“NPRM”) in the above captioned proceedings.1 The Mobile Marketing
Association (MMA) is the premier global non-profit trade association established to lead the
growth of mobile marketing and its associated technologies. The MMA is an action-oriented
organization designed to clear obstacles to market development, establish mobile media
guidelines and best practices for sustainable growth while ensuring consumers have a voice
influence on these policies, and evangelize the use of the mobile channel. The more than 700
member companies, representing over forty countries around the globe, include all members of
the mobile media ecosystem.
The MMA represents 330 members in the U.S. including operators, brands, agencies,
content providers, hand held device manufacturers, entertainment and media companies, as well
as any company focused on the potential of marketing via mobile devices. The Mobile
Marketing Association’s global headquarters are located in the United States and it has regional
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Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991,
Notice of Proposed Rulemaking, FCC 02-278 (2010).
chapters including North America (NA), Europe (EUR), Latin America (LATAM), Middle East
and Africa (MEA) and Asia Pacific (APAC) branches. The MMA supports academic and
individual memberships as well and we have 28 members from the US in those categories. The
organization also prominently solicits consumer feedback on its website to ensure that any
complaints or questions are followed up on in a timely fashion and holds public reviews for
suggestions that could improve the ecosystem overall and can be incorporated in subsequent
revisions of guidelines and best practices
I.
SPECIAL CONSIDERATION FOR MARKETING PRACTICES USING MOBILE
MESSAGING
It has long been recognized that marketing through mobile messaging services, including
Short Message Service (SMS) and Multimedia Messaging Service (MMS) are different than
telemarketing practices through voice services, and the user experience it delivers. The Mobile
Marketing Association supports the use of Common Short Codes for marketing practices through
mobile messaging:
Common Short Codes (CSCs) are phone numbers, usually four to six digits, that mobile
phone users utilize to send Short Message Service (SMS) messages to in order to receive
information, sports scores,weather alerts, or to participate in contests and receive
electronic coupons. By making it fast and convenient for mobile users to select and
receive information, CSCs greatly increase consumer response to advertising and
marketing promotions.
CSCs also put consumers in control because they can customize the information that they
receive. That ability is important because under most rate plans, users pay for incoming
SMS messages. By giving users a way to specify exactly what they want to receive, CSCs
improve the chances that they’ll participate in SMS-based campaigns.
CSCs are provided and managed by an ecosystem of companies, including the Common
Short Code Administration (CSCA), participating wireless carriers, Mobile Application
Service Providers (MASP) and Aggregators. Any company can use a CSC, but it must be
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obtained from this ecosystem through a series of steps, which include applying for a CSC
and submitting the CSC-based campaign to wireless carriers for review and testing.2
Marketing through the use of CSCs have many important differences from traditional
telemarketing voice calls as covered by the TCPA.
A. Inbound Message Charges
Although customers are rapidly adopting unlimited data and text message plans, many
marketing messages sent today still incur a charge on a customers phone bill. This consideration
has been used when developing the industry guidelines for marketing to customers and has been
a critical issue to address to ensure consumer adoption.
B. Two Way Communication
Mobile Marketing through the use of a CSC allows a consumer to communicate directly
with the marketer. Because the CSC is a contact number, displayed in the message, a consumer
can respond directly back to the marketer at any time through a text message (SMS). The
Mobile Marketing Association has established keywords that can be used by consumers for
specific requests to the marketer including HELP for information or support and STOP to opt out
of the service.
C. Message Delivery and Receipt Differences
When communicating with a customer through an SMS message, marketers are limited to
160 character messages. Because the message is displayed, in full, upon receipt by the
customer, marketing through mobile messaging has a very different user experience than a voice
call and therefore terminology, as expressed in the TCPA does not apply. This includes:
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MMA Short Code Primer, http://mmaglobal.com/shortcodeprimer.pdf (2006)
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“Abandonment 3”, “Prerecorded Telemarketing Calls”, “Call termination time”, “release call
requirements” etc.
MMS messages have different considerations than SMS, as any of the following can be
transmitted as long as file size limitations are met: messages, pictures, videos and sound. MMS
technology is currently not widely used for marketing purposes and innovation is still occurring
in this area.
D. Messaging Technology
The technology used in sending mobile messages is very different than the technology
used for pre-recorded or live voice calls. It is important that these technologies, and ultimately
the distinct method of marketing via message, are recognized in relation to their purpose of
communicating with customers through electronic means.
III.
RESPONSIBLE SELF REGULATION IN THE MOBILE MESSAGING SPACE
IS WORKING
MMA members are strong believers in the economic and innovative benefits for the
industry and customers alike in a self regulatory framework backed up by existing customer
protection laws and regulatory policy. Responsible, self regulation allows for the flexibility of
innovation and growth while ensuring that industry participants are protecting customers,
providing the optimal user experience and continuing the mobile channel’s growth and therefore
economic contribution.
The MMA’s primary focus is on customer protection and privacy, given the importance
of customer satisfaction in maintaining a sustainable industry and promoting growth. The MMA
Definition: “if a person answers the telephone and the caller does not connect the call to a sales
representative..” FCC 02-278 (2010)
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therefore strives to align its members and industry stakeholders with customers needs to ensure a
positive mobile experience. There are six fundamental elements to a positive customer
experience as outlined in our Global Code of Conduct4.
* Choice. The consumer must “opt-in” to a mobile marketing program. Consumers have
a right to privacy and marketers must therefore gain approval from consumers before content is
sent, and include clear directions on how to unsubscribe from communication should it become
unwanted.
* Control. Consumers should have control of when and how they receive marketing
messaging on the mobile phone and must be allowed to easily terminate or “opt-out” of an
unwanted program.
* Customization. Data supplied by the consumer for marketing purposes should be
used to tailor such marketing to the interests of the consumer (e.g. restricting communications to
those categories specifically requested by the consumer.). Targeting user consumer data made
available to the marketer helps to eliminate spam, making content as relevant and useful to the
consumer as possible.
* Consideration. The consumer must receive or be offered something of perceived
value in return for receiving the communication (product and service enhancements, entry into
competitions etc.).
* Constraint. The marketer must effectively manage and limit mobile messaging
programs to a reasonable number of programs, providing another protection to the consumer
against mobile Spam.
4
MMA Global Code of Conduct, July 2008 http://mmaglobal.com/codeofconduct.pdf
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* Confidentiality. Commitment to not sharing consumer information with nonaffiliated third-parties and then storing consumer data in a way that protects its integrity from
security breaches.
The Mobile Marketing Association’s (MMA) Consumer Best Practices (CBP)
Guidelines, for the United States market, provides the specific guide to implementing shortcode
programs used in marketing through mobile messaging. The cross carrier section of the
guidelines document is a compilation of accepted industry practices, wireless carrier policies,
and regulatory guidance that have been agreed upon by representative member companies from
all parts of the off-deck ecosystem. The CBP document is widely accepted as the industry
standard of care for mobile messaging programs, and additionally provides transparency into the
rulesets of the four major U.S. carriers. The following are guidelines5 relevant to the NPRM that
all mobile marketers must adhere to:
A. Notification
Customers must be notified about the source of the marketing message.
CCS-101 Program responds [to an opt-in] with pertinent phone, program, and contact
information
CCS-57.5 & CCS-5: 8 To help subscribers understand their participation, each program
should respond with the program details listed below when the subscriber sends the
keyword HELP to the program shortcode if they are only subscribed to one service.
•
Identity of program sponsor—This is defined as the program name, company
name, or brand associated with the campaign ….
B. Opt In
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U.S. Consumer Best Practices v5.0; http://www.mmaglobal.com/bestpractices.pdf April 2010
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Various guidelines are required of all marketers to ensure that a consumer has indicated
their consent to engaging in a marketing program. Marketers are required to obtain “opt-in” as
defined below:
CCS-08 Content providers must obtain approval from subscribers before sending them
commercial SMS or MMS messages and other content.
CCS-100 & 101: For standard rate programs, subscribers should indicate their
willingness to participate in a program and receive messages from the program as
follows:
i.) Subscriber may send a Mobile Originated (MO) message from their handset
to the short code.
ii.) Subscriber may initiate opt-in from a web interface
iii.) Subscriber may initiate opt-in from a WAP interface
iv.) Subscriber may initiate opt-in from an IVR system
The use of various technologies allows a consumer to choose the most convenient
method of opting into a marketing program. Additionally, marketers are required to retain
records of consent:
CCS-107: Independent of method of entry (SMS, MMS, Web, WAP, IVR) opt-in and optout records - including single, double and triple opt-in records – should be retained from
the time the subscriber opts-in until a minimum of six months after the subscriber has
opted-out of the program (minimum opt-in archiving period is one calendar year). These
records should be made available to the aggregator or carrier upon request.
CCS-123: The content provider/aggregator is responsible for tracking program opt-in
information by subscriber.
Through the consistent application of these guidelines, marketers are able to quickly and
easily engage with consumers who have indicated a willingness to communicate. Continued
acceptance of these opt-in methods without requirements for written consent requirement
‘through traditional pen and paper’ will allow the industry continued growth and innovation.
C. Opt Out
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In addition to ensuring that the customer has provided the appropriate consent, the MMA
created requirements that marketing programs through mobile messaging also must allow a user
to Opt Out.
CCS-39: Upon entering a program, the subscriber must be told how to opt-out of the
program.
CCS-08: Directions on how to unsubscribe from the program should be included in
program messaging on a regular basis.
CCS-40: A subscriber can stop participating and receiving messages from any program
by sending STOP to the shortcode used for that program.
Opt Out messages can easily be sent by the consumer directly back to the CSC that
originated the message at any time of day, for any marketing message received.
The MMA Code of Conduct and U.S. Consumer Best Practices guidelines document
combined with carrier specific rulesets and industry enforcement ensure that marketers are
engaging with mobile consumers while ensuring that the consumer is protected.
II.
ONGOING RESPONSIBLE SELF REGULATION ENCOURAGES
INNOVATION.
A. Industry Thought Leaders and Experts
The MMA implements a collaborative process for reviewing, and approving industry
guidelines; incorporating strategy and contributions of global industry thought leaders and
experts though committee work and the feedback of public releases and review periods.
B. Collaborative Global Learning
Self Regulatory models that incorporate global feedback and allow for global innovation
do not introduce fragmentation by region. The MMA’s Global Guidelines are the result of
collaboration from companies in Asia Pacific (APAC), Europe, Middle East and Africa (EMEA),
Latin America (LATAM) and North America (NA). Considerations are made in the guidelines to
establish a global baseline out of regional technologies, business models and local laws. The
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MMA and its members have been very successful in fostering the adoption of global best
practices.
C. Single Source, Frequently Updated Guidelines and Best Practices
MMA guidelines are single, industry-standard references that free carriers, technology
companies, brands, media companies and consumer advocates to focus on protecting consumers,
providing the optimal user experience and continuing the mobile channel’s growth while
allowing the ecosystem the ability to quickly adapt to changes in the market. The guidelines are
released approximately every six to twelve months and if deemed appropriate, the committees
may elect to release an interim revision of the guidelines. Demonstrating our responsible
approach to self regulation and partnership with the relevant government agencies, the MMA
voluntarily appears before the FTC to explain the changes to our documents and the likely
impact. This voluntary cooperation has been cited as an excellent example of how the
organization informs and partners with governmental bodies in the creation of self regulatory
guidelines.
V.
CONCLUSION
The Telephone Consumer Protection Act has been effective in protecting customers from
unwanted telemarketing voice calls, however recent legislation has encouraged U.S. courts to
interpret the TCPA to include both voice calls and text messages.6 The mobile messaging
industry faces some of the same challenges that the TCPA seeks to solve, however, the inherent
differences of technology allow for unique solutions that should not be restricted by the TCPA.
6
Satterfield v. Simon & Schuster, Inc, No. 07-16356 D.C. No. CV-06-02893-CW (2009)
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The MMA applauds the effort of the FCC to revise the TCPA with the goal of continuing
to protect the consumer, but would like to ensure, through a proactive and cooperative role with
the FCC, that the differences of electronic communication through mobile messaging is taken
into consideration.
Respectfully submitted,
MOBILE MARKETING ASSOCIATION
By: ________________________________
Kristine van Dillen
Director, Industry Initiatives & Partnerships
Mobile Marketing Association
8 W. 38th St. Suite 200
New York, NY 10018
[email protected]
Date: May 21, 2010
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