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 2

3. “Please stop making these videos. You are doing a disservice to the industry” -F.T.C. 3

4. “Please stop making these videos. They are embarrassing” M.O.M. 4

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 5

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 6

7. Two Issues to Deal With Future Text Message Registrations Current Text Message Database 7

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 8

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 9

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.” 10

11. Current Text Message Database - Transactional No changes Need express consent If previously properly obtained express consent can continue to send to them 11

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 pre- checked 12

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” 13

14. Follow me on Twitter @BriHeidelberger 14

15. More Mini Law Lessons youtube.com/AdAge.com & youtube.com/BrianHeidelberger 15