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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 1 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 2 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: 2 MMA Short Code Primer, http://mmaglobal.com/shortcodeprimer.pdf (2006) 3 “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) 3 4 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 5 * 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 5 U.S. Consumer Best Practices v5.0; http://www.mmaglobal.com/bestpractices.pdf April 2010 6 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 7 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 8 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) 9 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 10