If you listen closely, you can hear a small celebration in Chicago right now. The long awaited D.C. Circuit court opinion on the ACA International v. Federal Communications Commission, et al. appeal was handed down recently, and those of us in the mobile marketing industry are rejoicing for such a favorable decision.
Looking Back at the FCC’s Omnibus Order
Why such exuberance? Well, let’s briefly revisit what was at issue in the appeal.
If you’ll recall, in 2015, the FCC issued an omnibus order that completely upended many of the best practices legitimate mobile marketers had established back in the early days of mobile. Even without regulations, many mobile marketers had adopted these practices to protect consumers from receiving unwanted messages, as well as to enable them to easily opt out of mobile programs, should they no longer want to participate.
Additionally, the FCC expanded the definition of an autodialer so broadly that anyone with a smartphone could unknowingly violate the TCPA and be subject to fines or lawsuits.
The former Chairman wanted to address consumer concerns about unwanted calls and texts, something consumers passionately support. However, the omnibus of 2015 failed take into account that, one, some of their proposed rules did not translate well into the mobile space, especially text, and two, they didn’t get input from industry experts to understand that many mobile marketers had already been following a set of best practices that already addressed those very same consumer concerns.
And as result, these changes opened up new opportunities for professional plaintiffs to test how far they could manipulate the system for personal gain. They purposefully created situations to manufacture harm and then cry foul. And in the process try to extort hundreds of thousands if not millions of dollars.
Vibes Joins the Protest
Vibes felt so strongly about the impact of these new rules and definitions on legitimate mobile communication that brands and consumers engage in, that we, with the support from our expert TCPA counsel, helped petition to appeal the omnibus order.
Vibes spent months working with a team of petitioners who represented other industries impacted by this order, to ensure the voice of mobile marketers was represented in the arguments of the appeal.
The appeal doesn’t mean there are no rules in place, but they do revert back to where we were prior to the 2015 order for the definition of autodialer and reassigned phone numbers. In terms of revocation of consent, the court upheld the 2015 order, however, they provided more clarity on what would constitute “reasonable means,” which helps combat the professional plaintiffs who are trying to test the boundaries of the reasonableness.
So, with this decision, we take a moment to breathe a sigh of relief that our voices were heard. And, of course, mobile marketers like the ones Vibes works with will continue to put the consumer first in campaigns, regardless of what’s happening on Capitol Hill.
Now, you as a brand might want to know: what does this decision mean when it comes to my mobile programs going forward? Vibes will be conducting a webinar on April 26th at 1pm CDT to start addressing those very questions. Please join us if you’d like to learn more.