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By Dr Pieter Streicher, MD of BulkSMS.com. Uploaded on: 25 January 2012.
The Consumer Protection Act (CPA) allows sending unsolicited direct marketing communications (which is commonly seen as spam by many consumers) under certain conditions. However, if one looks more closely, it turns out that it is simply not possible to comply with these conditions with SMS communications.
Before sending out direct marketing messages to a database of contacts, a
company would have to ensure the following in terms of the CPA:
Provide the mechanism to afford each recipient the opportunity to opt-out at no
cost from these direct marketing messages.
While it is possible to comply with one and two, it is not possible to comply
with three - except on the Vodacom network, where a reverse billing channel is
provided. Normally, sending an SMS using the reply path to the SMS received
would cost the consumer between 50c and 80c, depending on the network. If the
sender allows opt-out by calling a toll free number, the call will not be toll
free if dialled from a mobile, as toll free numbers only apply to landlines. If
the sender allows opt-out via email, four out of five mobile users will be
unable to use this, as not everyone has an active email address or access to
communicate through email.
Until free opt-out becomes possible, it is technically illegal to send both
unsolicited direct marketing as well as solicited direct marketing via SMS. It
should be noted that the CPA does not distinguish between unsolicited and
solicited direct marketing.
There are two possible solutions:
With the second option there are two possibilities:
While option two above will legitimise spam, consumers will be able to punish
senders of unwanted messages by simply replying en masse to the sender. It is
also likely that anti-spam activists will publish specific toll free SMS
numbers widely. With some smartphones it might even be possible to filter out
all messages that include the wording “reply STOP”, and if the reply is charged
to the WASP, the phone could be set to automatically fire off a stop message.
With the WASP paying for opt-out SMS messages their financial risk is
unlimited. Initial experiments with toll free SMS numbers indicated that these
are regularly targeted by individual MSISDNs sending up to 2000 messages which
are charged to the WASP. Clearly, toll free SMS numbers are fraught with
problems from the WASP perspective.
It seems that the easiest solution is for companies to first get consent before
they send consumers direct marketing communications via SMS. With mobile it is
possible to get the consumer to contact the company with a shortcode callback
advertised in a wide variety of advertising media. This could include TV,
online, radio, magazine and billboard adverts. Perhaps if the risk of
unsolicited direct marketing messages is reduced, consumers will be less
reluctant to use their mobiles to contact companies.