1. Mini Law Lesson
Get Your Text Message House in
Order By October 16
Brian Heidelberger
bheidelb@winston.com
Twitter @briheidelberger
Info @ www.winston.com/bheidelberger

2. IMPORTANT DISCLAIMER
• I am not your attorney.
• This is not legal advice.
• Seriously … I’m not kidding
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3. “Please stop making these
videos. You are doing a
disservice to the industry”
-F.T.C.
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4. “Please stop making these
videos. They are embarrassing”
M.O.M.
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5. What Happens On October
16?
• FCC revised rule passed in 2012 regarding sending
text messages
 Now requires stronger form of consent to send
marketing messages and additional disclosures
• Previously just needed express consent
• Now need express written (signed) consent
• Now must state “Consent to get texts not
req’d/condition of purchase”
• Very significant penalties and risk of class action
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6. Two Types of Text Messages
• Transactional
 “You have been entered in our
sweepstakes”, “Your order will arrive
tomorrow”, “your flight has been
delayed”
• Marketing Messages
 “20% off today”, “New XX Now
Available”, “XX Tastes Better”
 Mixed Transactional and Marketing
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7. Two Issues to Deal With
• Future Text Message
Registrations
• Current Text Message Database
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8. Future Text Message
Registrations - Marketing
• Need express written (signed) consent
• Need to disclose “Consent to get texts
not req’d/condition of purchase”
• Consent can be via text or online
• Need signature
• Recommend double opt in
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9. Future Text Message
Registrations - Transactional
• Need “express consent”
• Can be done via text or online
• Need to disclose that texts will be received
 By texting you will receive up to 3 texts about the
sweepstakes”
• We recommend “double opt in”
 Text to receive and sponsor sends a text
request to confirm the opt-in
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10. Current Text Message
Database - Marketing
•Need express written (signed) consent
 Must include a signature (i.e., “Yes”)
•Need to disclose “Consent to get texts not
req’d/condition of purchase”
•Most likely, your current list isn’t compliant
•Should be re-upping consent periodically anyway
•Consider sending out a compliant text before October
16 to establish compliant opt-in:
 ‘Reply ‘Yes’ to sign to keep getting autodialed marketing
texts from XXX. Consent to get texts not req’d/condition of
purchase.”
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11. Current Text Message
Database - Transactional
•No changes
•Need express consent
•If previously properly obtained express
consent can continue to send to them
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12. Additional Requirements/Best
Practices When Getting Consent
(1) clearly describe program, not blanket opt-in;
(2) provide the name of the sender;
(3) provide opt-out instructions;
(4) indicate how many will be sent; and
(5) disclose additional carrier costs;
(6) give “help” instructions; and
(7) If a check box is used, it may not be prechecked
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13. Additional Requirements Best
Practices When Sending Text
Messages
(1) Only send content described in the
initial opt-in request
(2) Include “assistance” language: “Text
STOP to stop (conf. msg will be sent) or
email XXX” and “Text HELP for help
(3) Include “data” language: “Msg & Data
rates apply”
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14. Follow me on Twitter
@BriHeidelberger
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15. More Mini Law Lessons
youtube.com/AdAge.com
&
youtube.com/BrianHeidelberger
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