• by Wendy Davis  @wendyndavis, October 30, 2013

The Federal Communications Commission should refrain from enforcing some of the new regulations aimed at preventing mobile spam, the Direct Marketing Association says in a petition to the agency.

The new Telephone Consumer Protection Act rules, which went into effect on Oct. 16, prohibit marketers from using autodialers to send SMS ads to consumers without their explicit written consent. Critically, the new consent rules also require marketers to inform consumers that they will be contacted via autodialers, and that they don't have to agree to receive the messages.

The problem, according to the DMA, is that many marketers who previously obtained consumers' consent didn't include the now-mandatory language. The DMA is asking the FCC to “forbear” from requiring that language in situations where consumers previously consented to receive SMS ads.

“While there may be no harm in preserving the rule as it is worded and applying it to consents obtained after October 16, 2013, there is no valid reason in law or policy to subject marketers to exposure to lawsuits and regulatory sanctions for perfectly valid written consent agreements obtained before the effective date of the rule,” the DMA says in its petition.

The DMA isn't the only one taking issue with the new rules. The Mobile Engagement Providers Coalition -- which includes the Mobile Marketing Association, 4INFO, Tatango and others -- have asked the FCC to declare that companies need not obtain new opt-ins from people who previously agreed to receive SMS ads.

“There is no basis to nullify written consent lawfully obtained prior to October 16, 2013,” the coalition says in its petition.

The group also indicates that the new rules could lead to additional class-action lawsuits. In the last several years, consumers have sued a wide variety of retailers and tech companies -- including Google, Yahoo and Facebook -- for allegedly violating the TCPA.

“Given the unchecked and extraordinary growth of frivolous class action litigation in the mobile marketing industry, it is imperative that the Commission explicitly clarify this issue,” the coalition argues.

Attorney Marc Roth, a partner in the advertising, marketing & media practice at Manatt, Phelps and Phillips, says the new rules create a quandary for mobile marketers who obtained consumers' consent under the prior rules. He says that marketers risk enforcement actions if they rely on opt-ins obtained under the old rules. But if companies ask people who previously consented to do so for a second time, they might decline -- which could be interpreted by regulators as reflecting a desire to opt-out.

He adds that even if the FCC agrees to refrain from enforcing the new rules -- as the DMA has requested -- the regulations are still on the books and can still serve as the basis for lawsuits. “For the class-action guys, those are the rules,” he says. “They're still free to go after companies that don't comply.”