The 10 Legal Mistakes That Can Destroy A Mobile Marketing Campaign and How to Avoid Them

Countless case studies point to convincingly high success rates for well-executed mobile marketing campaigns. Results are measured by the size and quality of opt-in subscribers, offer redemptions and depth of customer engagement. This is all very exciting, however, lack of compliance with privacy laws and codes of conduct can invite trouble.

I’d like to introduce you to Tammi Franke, an accomplished attorney and Adjunct Professor at DePaul University’s Graduate Program in Public Relations and Advertising. I met her through the Illinois Technology Association where we chair separate monthly roundtable events. Tammi’s guest article below is a tremendous resource for marketers and technologists with mobile marketing responsibility.

The 10 Legal Mistakes That Can Destroy A Mobile Marketing Campaign and How to Avoid Them

by Tammi Franke

New technologies are available to marketers almost everyday. The toolkit of today’s savvy marketer would seem like magic to the “Mad Men” of the 1960’s.  Unfortunately, the law does not change at the same rapid pace as technology.  This creates some uncertainty and no one wants to end up as a test case in court over a mobile campaign.  Avoiding the following 10 legal landmines will help keep your mobile marketing campaign out of hot water and in the minds of consumers where it belongs.

1. Ignoring Generally Accepted Privacy Principles (GAPP).

Why this is a problem: In the U.S., Privacy laws are spread across several different pieces of federal and state legislation making compliance confusing and difficult. GAPP and its framework make compliance much easier.

How you can avoid this problem: Familiarize yourself with each of the GAPP principles.  Make sure your mobile marketing campaign complies with the GAPP framework.

2. Ignoring the MMA Code of Conduct

Why this is a problem: The MMA Code of Conduct is the leading example of industry self-regulation and mirrors many of the GAPP principles.  Ignoring the MMA Code of Conduct puts not only your campaign at risk but also puts the entire industry at risk of increased federal regulation.

How you can avoid this problem: Familiarize yourself with the MMA Code of Conduct Make sure your mobile marketing campaign complies with it.

3. Not getting approval of your mobile campaign from wireless carriers

Why this is a problem: Some messages to wireless devices are covered under CAN-SPAM and others, according to a recent California case, under the TCPA. For these reasons and customer service concerns, wireless carriers review and approve every broadcast mobile campaign over its network. If your campaign isn’t approved, the carriers may block it.

How you can avoid this problem: Using a leading aggregator or a short code from the Common Short Code Administration website, will simplify and expedite carrier approvals.

4. Short cutting your legal review/clearance process because “it’s only a text”.

Why this is a problem: FTC regulations apply to ads no matter how they are delivered.  In fact, mobile campaigns are under a microscope now because of heightened privacy concerns and because additional charges apply for many consumers when they receive mobile ads.

How you can avoid this problem: Treat your mobile campaigns just like any other ad or marketing campaign and use the same clearance process prior to launch.  Factor in the additional requirement for approval/clearance by wireless carriers.

5. Cutting out ad disclaimers because you don’t have room for them

Why this is a problem: Unfortunately, “I didn’t have enough room” is not a valid defense in a lawsuit.  If your ad requires an ad disclaimer, you’re obligated to provide it.  Just ask the pharmaceutical companies who received FDA warning letters for making claims in Google Adwords without the required disclaimers.

How you can avoid this problem: Revise the content in the mobile ad/text message so that it does not require a disclaimer or use mobile messaging as a tool for gathering opt-ins and information and not for pushing ad content.

6. Thinking you won’t get sued if you send an ad via text to a cell phone without permission.  You will.

Why this is a problem: Several litigation firms who specialize in representing consumers with claims under the TCPA are now focusing on class action law suits for the receipt of unauthorized text messages.  Many of these same firms previously brought class action “junk fax” suits under the TCPA.

How you can avoid this problem: Develop your own opt-in list with opt-in documentation for every mobile marketing message you send.  Don’t rely on third parties to do your homework.

7. Sneaking in a mobile opt-in on another registration.

Why this is a problem: The TCPA requires the express consent of a consumer before a mobile marketing message is sent.  The 9^th Circuit Court of Appeals held in a recent case that an opt-in to receive messages from a company’s “affiliates and brands” did not constitute express written consent to receive a message from someone who purchased the opt-in list.

How you can avoid this problem: Develop your own opt-in list with opt-in documentation for every mobile marketing message you send.  Don’t rely on consents given to third parties.

8. Ignoring consumer complaints.

Why this is a problem:  73% of FCC complaints in the first quarter of 2009 regarding wireless services were related to unsolicited marketing calls or messages. FCC complaints are easy for consumers to file.  If you don’t resolve a consumer complaint quickly, often the next step is a complaint to the FCC.  This can lead to increased industry regulation or inquiries into your specific marketing practices.

How you can avoid this problem: Assign a specific person or group to address consumer complaints regarding your campaign quickly.

9. Violating GAPP using Bluetooth proximity marketing.

Why this is a problem:  Even if a consumer isn’t charged for receiving a message via Bluetooth, pushing unsolicited content onto a mobile device via Bluetooth can seem as invasive to a consumer as receiving an unwanted text message.

How you can avoid this problem: Familiarize yourself with each of the GAPP principles.  Make sure your Bluetooth proximity campaign complies with the GAPP framework.

10. Ignoring contest and promotion rules because it is easy to conduct a contest via a mobile device.

Why this is a problem: State and Federal laws and regulations regarding contests, sweepstakes and lotteries apply to no matter how the promotion is delivered.

How you can avoid this problem: Treat your mobile promotions just like any other promotion.  Use the same legal review and clearance process prior to launch.

This article was prepared for informational purposes and is not legal advice.  You should not act upon this information without seeking advice from a lawyer licensed in your own state or country.

Tammi Franke
Fitzgerald & Hewes LLP
550 West Van Buren Street, Suite 1450
Chicago, Illinois 60607
office: 312.447.2900 ext. 2903
email: tfranke (at) fitzhewlaw.com
blog: http://tammifranke.blogspot.com

Tammi Franke is an experienced business executive and lawyer. She advises software, leasing, consulting, and other emerging and established marketing, communication and technology companies. Her specialties include licensing, business organization, corporate finance, and commercial matters.

She has experience in entertainment law, software licensing, and consulting services, a wide range of debt and equity financings, including venture capital and other private placements, and commercial lending.

She is formerly the Executive Director of Lawyers for the Creative Arts in Chicago and is currently an Adjunct Professor at DePaul University in the Graduate Program in Public Relations and Advertising.

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Tim Cascio is the author of the Mobile Marketing, Monetization and Methods blog, Co-Founder/Co-Chair of the Mobile Visionary Roundtable at the Illinois Technology Association and Co-Owner of GS Marketing Group, a marketing agency focusing on strategic plans for accelerated growth. Tim is @timcascio on Twitter and can be reached in the United States at (00) 1-773-793-6209. Please reach out to me if there’s any way I can help you through my network or otherwise. Your comments below are welcome.

Apple iSlate Roadmap: Game-Changing Features for Version 1.0 and Beyond

Mobile industry experts tend to agree on the purported iSlate features such as multi-touch, WiFi wireless networking and a long-life battery. But, what would make the iSlate a truly revolutionary device? I explore some possibilities below.

Apple’s new product announcement is scheduled for Wednesday, January 27, 2010, at 10am PST. Click here for live coverage at the time of the event.

• Live TV Programming.
  Play live TV broadcasts that include local, national and international programming. The initial offering could have a select number of high profile choices. Broadcast networks and their advertisers would love the eventual demographic and local targeting. Built-in analytics would drive further interest and participation.
• Voiceprint Technology.
  Biometric voice authentication could be required to unlock the device, conduct monetary transactions or access sensitive data. Industries such as health care and banking are key verticals where Apple would like to get a foothold for their tablet device. Authentication would allow for admin-defined sensitivity settings where access to extremely sensitive applications may require more voice samples to verify identity.
• Touch-back Screen.
  A keyboard would display on-screen similar to the iPhone, however, when your fingertips make contact, you’d receive touch-back feedback, providing unmistakable confirmation by sensors and actuators. The intensity level could be set by the user. Context-appropriate haptic (vibration) effects would make game playing more engaging, intuitive and natural. Furthermore, industrial and commercial applications would benefit from safer and more accurate control in distractive environments.
• Ultra-Thin OLED Flexible Displays and Batteries.
  If Apple employs OLED flexible display technology, the display depth could be paper-thin and the tablet could potentially be even thinner than the iPhone. Complementary thin, flexible battery technology could create some interesting form factors. While I don’t expect Apple’s first generation tablet to leverage a flexible display, it’s a strong possibility in future versions.
• Writing and Sketch-Pad Reinvented.
  The multi-touch screen would also work with a provided writing device. Creative professionals such as game developers, graphic designers, architects, animators, fashion designers and photographers would love the natural feel and accuracy that the writing device provides. Furthermore, students and business professionals could have their hand-written notes transcribed on-the-fly to typed text. Using the tablet as a sketch-pad would be a popular feature and the reverse end of the writing device could be used as an eraser.
• Publishing Rejuvenated. The timing is very good for publishers to find new revenue sources and Apple may be in the right place at the right time to help. Apple has the scale, payment and distribution platform to execute well. Apple’s Quattro Wireless acquisition and their advertising platform allows publishers to leverage their adverting base for ad serving on the iSlate and iPhone. Taking this one step further, Apple could eventually integrate location-aware pre-roll, post-roll and mid-roll advertising within their movie, TV and podcast content.
  • Free Past Editions of Magazines and Newspapers.
    To instill new behaviors for how people browse their favorite publications, Apple’s tablet device could offer access to free past editions of a select number of high profile magazines and newspapers. I expect a reading-friendly form factor with features that include Apple-elegant page turning, zoom, rotating display, “mark-as-read” feature and bookmarking.
  • Purchase, Annotate and Share Magazine and Newspaper Articles.
    The tablet could allow for annotations, highlighting or comments to be added as a removable layer. With a few strokes of your finger, you could share the document via email, Facebook, Twitter or other social network with or without your annotations. Similar to how Apple offered individual songs for sale at an affordable price, articles could be offered for sale individually, too. May the best written articles win. Actually, it’s probably more accurate to say, “May the articles with the best headline, abstract, teaser photography and reviewer ratings win.” Purchases of articles, full editions and subscriptions would be made using iTunes.
  • Text-to-Speech Playback.
    Articles and/or books could be read to you. iPhone already has a similar feature found by accessing: Settings > General > Accessibility > VoiceOver.  Select from a number of available male and female voices.
  • Embedded Interactive Videos.
    Magazines and newspapers could begin to include embedded videos for feature stories and advertising content.
  • eBook Teaser Content and Instant Downloads.
    Similar to Amazon’s “Look Inside” feature, best sellers, new releases and text books could offer previews of their table of contents, prologue, introductory chapters and the index. Apple has the potential to ultimately become the low cost provider of e-textbooks that serve students from grade school to graduate school. eBook purchases would be made using iTunes.
• iPhone Internet Tethering.
  Besides having built-in Wi-Fi wireless networking, the tablet could allow for iPhone Internet tethering. This would enable tablet users to connect to the Internet via their iPhone AT&T service plan.

• Credit/Debit Card Swiping.
  Would we use the Apple tablet more often if it were easier to make online purchases or to accept payments? Perhaps a built-in card swipe feature is in the works? Square is getting a lot of press with their mobile payment solution.

• iPhone Apps Compatibility, Synching and Multi-tasking.
  iPhone apps would wirelessly synchronize to the tablet and fully function in each of the following ways.
  • Run any app full-screen. Perfect for interactive games and entertainment apps.
  • Run apps in background. Ideal for music streaming Apps like Pandora.
  • Run several apps at one time. Great for tracking real-time sports statistics while chatting with friends in Facebook and monitoring your Ebay bids.

What features do you envision for the Apple tablet roadmap? Please leave your comments below.

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Tim Cascio is the author of the Mobile Marketing, Monetization and Methods blog, Co-Founder/Co-Chair of the Mobile Visionary Roundtable at the Illinois Technology Association and Co-Owner of GS Marketing Group, a marketing agency focusing on strategic plans for accelerated growth. Tim is @timcascio on Twitter and can be reached in the United States at (00) 1-773-793-6209. Please reach out to me if there’s any way I can help you through my network or otherwise. Your comments below are welcome.