American Marketer


FCC’s Oct. 16 deadline for mobile opt-in looms for marketers

July 5, 2013

Brad Schorer is vice president and general manager at PossibleNow Marketing Services


By Brad Schorer

By now, your organization has fully come to grips with the new Federal Communications Commission requirement that goes into effect this October that mandates that before you are able to call any customers or prospect using any form of auto-dialing that you must acquire their express written consent.

You have also looked at your internal customer database and recognized that a large number of your existing contact information are mobile phone numbers. Because of this, you have developed a multichannel strategy to communicate with your customers and acquire the written consent so that you can continue to communicate with them, right?

If your organization has not thought through this situation yet, you are not alone.

Many large organizations are finding that they are at risk of losing hundreds of thousands, if not millions, of valuable customer phone numbers that they are not able to contact via their call centers or mobile marketing efforts.

To develop a strategy for addressing, we need to understand the new rule.

Autodialed calls to mobile numbers: What is the new rule?
The new rule to the Telephone Consumer Protection Act issued by the FCC and effective Oct. 16, 2013 states that no telemarketing call or text may be made to a consumer’s cell phone using an automatic telephone dialing system without prior written express consent.

An automatic telephone dialing system (ATDS) includes a predictive dialer, power dialer, preview dialer, click-to-call, or anything that can dial numbers without human intervention.

Text messages/SMS are considered the same as phone calls and must be handled in the same manner, including do not call processing. This does not affect any customer service, account management or technical service calls or texts.

Written consent requirements
The challenge with the new rule around written consent is that the consent may not be implied or buried in privacy documents or terms and conditions of a Web site.

All types of written consent must be clear and conspicuous and meet the following requirements:

Consent must be obtained in a written agreement, which includes a signature

• Electronic signature is sufficient in accordance with the E-SIGN Act.

The agreement must specifically indicate the seller to whom consent is being provided

• No longer can the provision of a phone number allow for the data to be sold to multiple companies unless the consumer is informed of every specific seller that may contact them.

The agreement must include the consumer’s cellular number

The consumer must indicate an affirmation of agreement

The agreement must clearly and conspicuously disclose:

• The person authorizes the seller to make telemarketing calls or mobile marketing.

• The calls will be made using an ATDS or mobile marketing service.

• The person is not required to provide consent as a condition of purchasing goods or services.


For companies:

The implication of these new rules are far reaching for companies that communicate with their customers and prospects via their mobile devices.

Many companies have significant numbers of mobile phones as the primary contact method for their existing customers.

As an example, analysis run on databases of large cable companies have mobile phones on more than 40 percent of their customer lists.

Existing business relationships that are inferred are no longer applicable until consent is captured. The ability to upsell via telemarketing or mobile marketing to their existing customers has been compromised without this consent.

For marketing service companies:

As service providers, they are viewed as an extension of their own customers.

It would be critical for these companies to ensure contractually that their customers provide them with only consumers who have provided express consent if they are being asked to contact them on the phone or via text.

Limitations of liability and other protections for the service provider should be added into the contract.

For lead generation companies:

Lead generation companies are going to have challenges as well. They are going to have to capture the consent from the consumer at the time of data collection, but they also will be required to know who the buyers of those leads are before the data is collected.

This is critical to meet the obligation of informing the consumer of who they are providing consent to. No longer can ambiguous statements such as “your data may be shared with our third party marketing partners” can be used in the collection of mobile phone data.

Methods for obtaining consent
The capture of the consent can be obtained via a variety of media including:

Physical forms

• Customer agreements/contracts

• Order forms

• Business reply cards

Online forms

• Lead generation forms

• Preference centers


• Replies from consumers

• Directing consumer to a webpage to provide consent

Inbound and outbound (wireline) calls

• Customer Service

• As part of the sales process

Text messages/mobile calls (prior to Oct. 16, 2013)

Companies should understand that necessity for a multichannel approach to collecting the consent from their customers in order to get the broadest coverage and reach prior to Oct. 16, 2013.

Furthermore, each company should be aware that the consumer will be contacted by numerous companies seeking consent across industry verticals (e.g. cable, utilities, insurance or financial services).

There will likely be diminishing chances in gaining consent from a consumer that has already been contacted by numerous companies beforehand for the same consent.

Record keeping
This new rule also obligates the marketing entity to have the burden of proof to show that consumers provided the written consent.

Records should be kept for at least five years from the last date the consent is relied upon to make the call or text message.

Companies should review their current record-keeping procedures to prepare for the new requirements and allow for the consumers to manage their preferences as it relates to their consent for mobile marketing messages.

What now?
Mobile devices are such a large part of society now that having this medium removed from your marketing mix could reduce your opportunity for engagement with your customers and prospects.

Now is the time to act.

Enterprises should implement methods to obtain consent across all operations and marketing efforts prior to Oct. 16 to gain as much mobile opt-in as possible. Remember, your mobile opt-out rate after Oct. 16 is guaranteed to be 100 percent if you have not received consent.

Brad Schorer is vice president and general manager at PossibleNow Marketing Services, Atlanta. Reach him at