Dear Friends of Diablo Media,
Starting Wednesday, October 16, 2013, new legal rules will change the way our industry collects customer contact information. The updated rules apply to businesses that use phone calls and/or text messages to connect with new prospects and relay offers. The following announcement summarizes the rules and provides additional context.
| Issue | Previous Approach | New Approach |
|---|---|---|
| Consent |
Consent clause buried in Terms of Use Example: By volunteering your phone number, you agree to be contacted by this website and third parties affiliated with this website. |
Consent clause included next to consumer checkbox Example: Clicking “yes” constitutes written consent. Consent is not required as a condition of purchase. Do you agree to be contacted via phone call or short-message service by [Advertiser Name] for promotional offers regarding [Product]? [] YES [] NO |
| Established Business Relationship | “EBR” safe harbor allowed companies to call or send text messages (subject to restrictions.) | “EBR” safe harbor no longer available. |
With the new rules, businesses nationwide may only call or send a text message once they have prior, written consent. Written consent will be required even where a customer has voluntarily provided a phone number. Prospects who receive phone calls or text messages before giving their written consent can pursue claims against affiliates and advertisers. Penalties for violating the new requirements will range between $500 and $1500 per call, depending on the context.
In the coming months, businesses will often consult with counsel to draft specific consent provisions, which prospects must affirmatively accept through e-signature. To improve compliance, many businesses will also consider adopting document retention policies. The most important documents to store are screen shots (in JPEG or PDF format) and log data. Screenshots provide evidence that prospects have affirmatively accepted a specific consent provision. Log data provides evidence that prospects have e-signed from specific IP addresses at certain dates and times. Advertisers, in many cases, will hold affiliates accountable for these requirements. Some advertisers will adopt overlapping compliance steps, which range from indemnification agreements to randomized audits.
Notably, customers will have the right to revoke consent as well. Therefore, advertisers and affiliates will collaborate to honor all Do-Not-Call requests, including by updating scrub lists and relaying company-specific no-contact requests, even when there is a pre-existing business relationship. Finally, advertisers and affiliates should familiarize themselves with local time-of-day restrictions before sending, authorizing, or ratifying any calling or texting campaign.
Thank you for reading this announcement, which is not a legal document and does not alter any agreement in force now or going forward. While Diablo Media is happy to coordinate with our clients and partners to keep our compliance approaches compatible, no businesses or individuals should rely on this generic announcement to determine their own rights, or Diablo Media’s duties or obligations. Compliance steps that satisfy the new legal rules will vary by advertiser, campaign, format, vertical, and customer sophistication.
As always, you can click here to sign up or call your account rep today at +1 (303) 305‑4052.
Sincerely,
Compliance Team at Diablo Media