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Mac Murray, Petersen and Shuster, LLP | [email protected] | [email protected]

MOBILE MARKETING, NOT MOBILE LAWSUITS

Presented by: Shaun Petersen and Allison Harrison

mailto:[email protected]



WHAT DOES THE MOBILE “ROAD” LOOK LIKE?

•“Calling” Cell Phones:• Knowing how to properly call or text customer’s cell phones for:

•Sales calls, •Service appointment reminders, and•Any other reason.

•Advertising Online and on Mobile Devices• Knowing how to make required disclosures are clear and conspicuous • Knowing what additional endorsement or contest disclosures are

required




RULES OF THE ROAD FOR CALLING AND SEDNING TEXT MESSAGES TO CONSUMERS’

CELL PHONES




CALLS AND TEXT MESSAGES TO CELL PHONES

•General Rule: Cannot use an ATDS or a prerecorded message to call a cell phone without the called party’s prior consent• Non-telemarketing Calls- must have “prior express consent”• Telemarketing/Advertising Calls- must have “prior express written

consent”•Electronic signature is sufficient•Specific requirements must be met (discussed below)•Mixed purpose calls treated as telemarketing calls• The same rules apply to telephone calls to cell phones and text

messages to cell phones. Note: Consent is not required if the call is made without using an ATDS

or a prerecorded message




WHAT IS AN ATDS?

•Current Interpretation- any equipment with the capacity to dial telephone numbers without human intervention

• Focus is on the capacity of equipment– not the manner in which calls are actually dialed

• Recent court decisions have limited the inquiry to the equipment’s present capacity

• One touch dialing on system without capacity to autodial is ok




WHAT IS PRIOR EXPRESS CONSENT?

•TCPA / FCC Regulations- do not define this term•FCC Ruling- subject to certain limitations, a consumer provides prior

express consent for non-telemarketing calls by providing his/her cell phone number to a business

•Court Opinions• Overwhelming majority of courts have deferred to the FCC Rulings

• Exception- S.D. Florida held in 2013 that the FCC Ruling is invalid (currently being appealed to the 11th Circuit)




HOW TO OBTAIN PRIOR EXPRESS WRITTEN CONSENT

•Summary of Requirements•Written Agreement. Consent must be obtained in a written

agreement, which includes the signature of the person providing consent. An electronic signature is sufficient to effectuate a written agreement in accordance with the E-SIGN Act. • Identity of the Seller. The agreement must specifically indicate the

seller(s) to whom consent is being provided. • Telephone Number. The agreement must include the cellular

telephone number at which the person consents to receive calls. • Affirmative Action. The consumer must take some affirmative action

to indicate his/her assent.




HOW TO OBTAIN PRIOR EXPRESS WRITTEN CONSENT (Cont.)

•Summary of Requirements •Mandatory Disclosures. The agreement must clearly and

conspicuously disclose:•That the person is authorizing the seller to make telemarketing calls;•That calls will be made using an ATDS (or prerecorded message, if

applicable); and•The person is not required to provide consent as a condition of

purchasing any good/services. • Documentation. The seller has the burden of proof to show that

consumers provided written consent to be called. Recommended to keep all records for at least 5 years from the last date the consent is relied upon to make a call.




HOW TO OBTAIN PRIOR EXPRESS WRITTEN CONSENT:

PAPER CONSENT•Paper Consent Forms• Printed or typed name and signature• Include date• Customer Agreements/Order Forms/Other Documents

•Conspicuousness of the disclosure?•Consent required to make purchase?•Include separate consent provision and have customer specifically

consent to this provision by signing/initialing the provision or checking an "I agree" box.

• Recordkeeping. Keep copies of all written agreements (storing in electronic format is sufficient)




HOW TO OBTAIN PRIOR EXPRESS WRITTEN CONSENT:

ONLINE CONSENT FORMS

• Customer Agreements/ Order Forms / Other Agreements. Same considerations as outlined for Paper Consent Forms.• Affirmative Action and Signature.

• Clicking “Submit” button sufficient?• Check box required?

• Clear and Conspicuous Disclosures. All disclosures should be made in immediate proximity to the button that consumers will use to provide their electronic signature and assent to the agreement• Recordkeeping. What data to collect?

• Name and phone number• Time/date• IP address• URL• Exact disclosures used at the time the consumer provides consent




STATE SPECIFIC REQUIREMENTS

• Certain states prohibit telemarketing calls to cell phones regardless of whether ATDS is used• AZ, LA, NJ, TX, WY• EBR exemption in WY• Express consent required in other states (no specific requirements

set forth by states on how to get consent)• Some states specifically prohibit text message advertisements

• AZ, CA, RI, WA• “Existing relationship” exemptions in AZ, CA and RI• Clear and affirmative consent required in WA




RULES OF THE MOBILE AND SOCIAL ADVERTISING ROAD:

Making clear and conspicuous disclosures on all mobile devices




ONLINE MARKETING:GENERAL CONSIDERATIONS

• Take into account the various devices and platforms which the consumer may view the advertisement.

• When space is not an issue, make the disclosure on the same page as the corresponding offer (i.e. your website)

• When space is an issue, use hyperlinks to make the required disclosures (i.e. Twitter)

• Design advertisements so that “scrolling” is not necessary to find the disclosures. If its unavoidable, use text or visual cues to help the consumer find the disclosures

• Display disclosures before the consumer makes a decision to buy or submit credit application

• Repeat disclosures on lengthy websites




ONLINE MARKETING:GENERAL CONSIDERATIONS

• The same consumer protection laws that apply to other media also apply online, including on mobile devices• Required disclosures must be clear and conspicuous

• Considerations for “clear and conspicuous:”• How close the disclosure is to the offer• How prominent the disclosure is to the offer• Whether other parts of the ad distract attention from the

disclosure• Whether the disclosure needs to be repeated • Whether the language is easily understood by the intended

audience




ONLINE MARKETING:GENERAL RULES

• Hyperlinks to lead to disclosure: • Make the link obvious• Label the hyperlink appropriately to convey the importance, nature

and relevance of the information it leads to • Use hyperlink styles consistently, so consumer knows when a link is

available • Place the hyperlink as close as possible to the relevant information it

qualifies and make it noticeable• Take consumers directly to the disclosure on the click-through page• Assess the effectiveness of the hyperlink by monitoring click-through

rates and make changes accordingly




ONLINE MARKETING:GENERAL RULES (Cont.)

• Hyperlinks to lead to disclosure: • Don’t use block-able pop-up disclosures • Be aware of technological limitations:

• Device limitations• Brower limitations • Software limitations (i.e. iPhones and Flash)


ENDORSEMENTS AND TESTIMONIALS

• FTC updated its guidelines in 2009•Material connections between advertisers and endorsers must be

disclosed if not readily apparent •Ownership interests, paid referrals, etc.•Often an issue with respect to blogs/tweets• FTC suggestions #endorser, #paid, #ad, or #promo• Twitter “Promoted by ______” labels


ANY QUESTIONS?

Contact Info

Full Name:

Company:

Job Title :

Email:

Shaun Petersen Allison Harrison

Mac Murray, Petersen and Shuster, LLP

Partner Associate

[email protected]

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