Category: Messaging Laws & Compliance

Speak of the devil. Last week when I wrote about Cloudmark’s SMS spam hype, I thought I made a good case, noting that the majority of marketers follow industry-accepted best practices, and that the price of sending texts will greatly limit SMS spam-senders.

But it’s easy to use fear to cause good intentions to veer to the dark side. “Fear leads to anger, anger leads to hate, hate leads to suffering” and all. That’s what could happen, though, with a new proposed federal law aimed at curbing SMS spam.

The act, called m-SPAM and introduced by U.S. Senators Olympia Snowe and Bill Nelson, wants to restrain marketers from sending unwanted texts to consumers. No one can argue with that. But the law as proposed could unintentionally harm legitimate marketers–those who only send messages to people who’ve opted in to receive them–and even consumers who wanted those texts offering a coupon, entry to a party, or other discounts or specials.

How would this harm honest mobile marketing campaigns? As our CEO, Jared Reitzin, told Mobile Marketer, “I’m extremely against having wireless numbers on the do-not-call list, it’s absurd… They’re going to charge people to scrub against it? Will they offer APIs we can automatically scrub against? How long is it going to take to get your data back? That will be shot down… Overall the m-SPAM Act is probably a good idea to establish best practices, but not going to stop spam.”

Legislators should work with mobile marketing leaders to create the most effective law, one that will criminalize mobile spammers while supporting the efforts of honest SMS marketers. Carriers should weigh in too, since SMS marketing is one of the reasons why texting has become such a revenue-driver for them. Marketing experts should write to their own Senate and Congressional representatives, explaining what lawmakers need to consider when crafting the federal statute.

Those on the Hill shouldn’t be quick to rush in heavy-handed.

The Mobile Marketing Association has extensive plans to boost itself–and the mobile marketing space–for the coming year, with a new leader, a soon-to-be home base in New York, and work on creation of updated best practices for U.S. marketers.

Mike Wehrs last week was named MMA’s new president and CEO. The former vice president of Nuance Communications, which is known mostly for its voice-recognition technology, seems to have hit the ground running. Reports indicate that he wants the organization to offer its members concrete ways that they can meet strategic goals. This includes the move to New York, home of Madison Avenue, making it easier for the MMA to interact with marketers and advertisers. It also includes educational initiatives, since as Mr. Wehrs said, “Right now it’s very difficult to put together a mobile campaign… there are lots of things an advertiser has to know just to do a text message campaign.”

(Note: We at mobileStorm understand this, and like the MMA hope to help mobile marketing newbies with the whitepapers titled SMS Or Die and Digital Marketing Best Practices For Geniuses, and with the webinar titled Making Money With Mobile Coupons.)

As far as growth, Mr. Wehrs noted the evolution of mobile marketing in new industries. Besides interest from consultant and content companies, he said, “Mobile banking is another example where we are seeing some of the banks coming to us and asking what can be done for their set of applications. Financial institutions in general are mobilizing.”

Meanwhile at the MMA’s Best Practices Forum, a diverse group of mobile industry professionals gathered to suggest what should be included in the organization’s upcoming set of best practices for the United States. The MMA releases updated best practices every June and December.

One of the biggest developments discussed at the forum was the CTIA’s plan to start monitoring every short code campaign, to check for compliance with both the MMA’s best practices and with individual carriers’ requirements.

Marketing experts also talked about creating not just standards, but also punishments regarding compliance with CBP and carrier requirements. They also noted that privacy standards will be more important than ever: As revenue from mobile campaigns increases, so will scrutiny into marketers’ behavior.

Sounds like the MMA is thinking ahead, not just for 2009, but beyond.

Eydie Cubarrubia, Marketing Communications Manager, mobileStorm

“I’d rather you text me”

Californians woke up to the new year with a new law that bans text messaging while driving. The Golden State isn’t the only one; according to the Governors Highway Safety Association, texting is prohibited for drivers in Alaska, California, Connecticut, Louisiana, Minnesota, New Jersey, Washington state, and the District of Columbia.

Recalcitrant marketers might use this as an excuse to not use SMS campaigns. But they shouldn’t!

The benefits of SMS–high ROI that results in bigger revenue–are what all business will need during this recession. So it’s worth marketers’ efforts to create campaigns that effectively reach customers, stay within the law–and don’t cause accidents.

Foremost, try not to send messages out during rush hour or other periods when consumers are much more likely to be behind the wheel. Instead, text them just before they hit the road. For example, a restaurant promoting a lunchtime special should send the SMS at 11 a.m.–right when people are starting to wonder what they’re going to eat. A coffee place would do well to send an SMS coupon or other promotional message at 6 a.m., just before the big morning drive.

Also, if you have a campaign about a day-long event such as a sale or festival, it makes sense to send texts about it the night before–say, 9 p.m. on a weeknight. You’ll still generate the excitement of timely messaging (“there’s a 50% off sale on bedroom furniture tomorrow only!”)–and even give the consumer a few more hours to prepare. If you believe you’ll make a bigger splash by sending such messages the day of an event, then follow the early-morning rule that I suggested for coffee houses.

Weather, traffic, and news alerts can still be sent as usual. But if you haven’t already, consider offering the subscriber the choice of when and how often to receive such alerts–such as “every four hours” or “at 7 a.m. and at 7 p.m.” If you really don’t trust their judgement, then limit the choices to timeframes when they’ll be less likely to drive.

Anyone have any other ideas they’ve implemented? I’d like to hear about it!

Eydie Cubarrubia, Marketing Communications Manager, mobileStorm
“I’d rather you text me”

The couple that spams together gets successfully sued together.

This week a federal court ordered spam marketing husband-and-wife team Henry Perez and Suzanne Bartok to pay a small Internet service provider (ISP) more than $236 million for sending out some 23 million emails advertising loan refinancing services. The messages were sent to the servers at CIS Internet Services in 2003–using the ironically-titled program called Bulk Mailing 4 Dummies.

Happily, this is just the latest news about spammers getting theirs. What I like about this story is that the little guy (CIS is a tiny ISP based in Clinton, Iowa) is fighting spammers one at a time–and winning. CIS’ triumph in the U.S. District Court in Davenport marks the tenth lawsuit in which it has prevailed, company owner Robert Kramer III said. Mr. Kramer has been at it for years: Wins include a $11.2 billion judgement against a Miami spammer in 2006, and a combined judgement of $1 billion after winning lawsuits against three spammers in 2005.

Mr. Kramer said during the most recent trial that the spam messages cut into his company’s bandwidth, making it harder for his customers to go on the Internet and costing CIS a lot of business. The number of CIS clients dropped from 5,000 in 2001 to 1,200 by late 2004.

For CIS, the drop was significant enough to prompt Mr. Kramer to go after those who messed with his bread and butter. Nevertheless, his successful lawsuits should prompt larger ISPs to follow through in their own anti-spammer actions. Even if it’s unlikely Mr. Kramer will collect the cash judgements owed him, he’s won on another front: CIS now gets only 10 to 15 million spam messages daily, down significantly from the 500 million it did in 2003.

Eydie Cubarrubia, Marketing Communications Manager

“I’d rather you text me”

When you’re an elementary school kid, Thursday is “Opposite Day.” In that same youthful spirit: Instead of offering tips for effective messaging that adheres to best practices and pleases–rather than angers–consumers, we’re going to showcase an example of what NOT to do.

Recently our office received this email (two screen shots are of the same message) from what seems to be a company called Believe Audio:

First off, the message didn’t even come to the specific email address; it came to something called “Believe Audio Mailing List.” We have no idea how our accounts got on this list to begin with, nor the email address/addresses to which these guys were actually sending.

It gets better. The top of the message says that recipients can remove themselves from the company’s mailing list by replying to the email with REMOVE in the subject line.  However: In the first screen shot notice that the sender leaves out the “from address”! There is also no “reply-to address” when you try to reply to the email. Thus, when you add REMOVE in the subject line, it doesn’t matter because you can not send the email to anyone.

To be sure, you can see in the second screen shot that a “mail-to address” does appear in the header stamp further down, in Outlook. So yes, the recipient is able to send the sender a message asking to be removed. But the company sure made it hard to do so.

The kicker? These guys use Spam Arrest, a program that makes message-senders confirm they are not a robot spamming. Thus, you need to enter in a word that is displayed on the screen in order for your removal request to be sent–to the person who spammed YOU in the first place!

Now it’s time to state the obvious:

1. This company should only send email to addresses whose owners have opted-in to receive these specific types of messages.
2. The message should show the address to which the message is being sent.
3. The message should show the company’s “from address” and let someone reply easily, without having to go through a challenge response system like Spam Arrest.
4. This company needs to provide an opt-out link in all its messages that will–RIGHT AWAY–remove recipients from the mailing list.

Here’s a fifth fact: Believe Audio should read up on best practices for email marketing, and then stick to them. We suggest our white paper, Digital Marketing Best Practices for Geniuses. A more ironic title was never written.

Eydie Cubarrubia, Marketing Communications Manager, mobileStorm

“I’d rather you text me”

Recently the folks at Gmail announced via their blog that they have been working closely with PayPal and eBay in an attempt to reduce the number of phishing attacks and the associated collateral damage. By using industry email authentication technologies such as DomainKeys and DomainKeys Identified Email (DKIM), they now authenticate every message sent PayPal and eBay. The end result is that if a message from either paypal.com or ebay.com arrives at Gmail, if it does not pass Gmail’s authentication verification, Gmail will reject that message completely and not deliver it.

The significance of this is that Gmail has now set a precedent within the realm of email deliverability. In short, the search giant has made the executive decision not to deliver messages from two particular companies unless those companies take steps to authenticate their email. What if Gmail were to decide to use the same policy for all inbound email? At this point, I think that is very unlikely, considering that email authentication unfortunately has not been embraced yet by the majority of email senders. In fact, it was also recently reported that less than half of Fortune 500 companies are using any sort of email authentication. A mere 202 companies—40 percent—are using some sort of authentication, and only 72 of those are using DomainKeys/DKIM. That to me is a little scary.

Folks, the time will come when spam and email abuse is bad enough that Internet and email service providers will make the decision to only deliver email that has been authenticated. Once that happens, any email senders who have not authenticated their email will be rejected. Do you want to be in that predicament? Will you be ready when that time comes? At mobileStorm, we use all authentication methods in our email. We are prepared.

Now is the time to start authenticating your email. There are numerous resources to help you understand these technologies and how to implement them. Authenticate today!

Until next time,
Jaren Angerbauer, Director of Deliverability, mobileStorm
Drink Responsibly, Drive Responsibly, Email Responsibly

When I was talking to a friend’s husband months ago, he asked me what mobileStorm did. I told him, “We provide technology that helps companies send out marketing messages.” He said, “Oh, like spam and telemarketing calls?” and proceeded to go off on one such annoying call he’d recently received. It took a while before he registered my cries of, “Permission-based! Permission-based!”

It’s because of such worriers like him that pressure to regulate consumer privacy is high, especially considering the growth of behaviorally-targeted Internet ads, social network use by minors, and the now-common use of SMS. But the Interactive Advertising Bureau is keen to prove to U.S. lawmakers that self-regulation among legitimate marketers is a much better way to combat abuse than would be the passage of increasingly more laws. The IAB is currently wondering how—and if—it should enforce best practices among all marketers.

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I’m writing this from the sky as I fly over the Atlantic Ocean, on my way back from Heidelberg, Germany where I attended a MAAWG conference. I always enjoy going to MAAWG, not only because of the vast amount of socializing and networking that goes on, but also because of the high level of knowledge and expertise there. For example, I attended a panel discussion that included the managers of the postmaster teams for both AOL and Hotmail. These people are the ones who make the decisions on how email is delivered, and whether it is bulked or blocked. From my standpoint as the one in charge of ensuring good delivery for mobileStorm, the value for attending these conferences is clear.

Overall, from the panel discussions to the hallway discussions, some fundamental truths were again reconfirmed to me. These aren’t new concepts, and have been discussed at length in the past, but I will reiterate as they are becoming increasingly important.

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I took a little break from blogging, and am now back in the saddle again. However, rather than getting to hear me preach about deliverability every week, I am going to share my slot with my esteemed colleagues Jared Reitzin and Shaneli Ramratan. So enjoy the new schedule!

The FTC recently approved some slight modifications to the CAN-SPAM act. While these changes will not dramatically impact the way we send email, they are worth noting, as they do affect the way some mailers manage their unsubscribe process, among other things.

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Yesterday, a federal grand jury indicted a woman who allegedly caused the death of teenager Megan Meier by harassing her on MySpace. Now, I want to make clear that the girl’s death is no frivolous matter, and that I myself was horrified when I first heard the allegations. However I do think that marketers need to take note of the case because it indicates a trend of legal action against those—including illegitimate marketers—who abuse MySpace.

Lori Drew is being charged by federal officials in Los Angeles because there are federal laws that apply to the situation. Prosecutors in Missouri, where the alleged crimes happened, have said no state laws there are applicable to the case. Among the allegations is that Ms. Drew violated MySpace’s terms of service by creating a false account and using it to send false messages.

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