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The dangers of a do-not-text list

Is the inclusion of a do-not-text registry -- similar to the no-call list -- in a new Senate bill on unsolicited SMS messages a case of legislative overreaction? A solution chasing a problem?

It's yes to both.

As staff reporter Dan Butcher wrote here last week, Senators Olympia Snowe (R-ME) and Bill Nelson (D-FL) have introduced a bill that could become the m-SPAM Act of 2009, if passed. The goal is to curb text spam -- a common occurrence overseas, but rare in the United States thanks to wireless carrier vigilance.

Mr. Butcher's article debated the merits and demerits of such legislation, so it does not bear repeating here. But what does need to get special attention is the bill's insistence on a do-not-text list on the lines of the Federal Communications Commission's Do-Not-Call Registry.

The DNC list already prohibits telemarketer calls to mobile numbers, although the task is getting complicated with the porting of landline numbers to mobile that were not on the no-call list.

In other words, scrubbing the database has gotten more complex. Telemarketers cannot call mobile numbers. But what if the consumer porting the landline number to mobile originally did not sign on to the Do-Not-Call registry?

Admitted, the no-call list cut the number of telemarketing calls and forced the teleservices industry to become more innovative, at least with call center services in the inbound area and Web chat.

A no-text list, on the face of it, would seem ideal for consumers. After all, who wants unsolicited messages on the mobile phone where the recipient has to pay for the incoming message?

But how common is that occurrence? Carriers such as AT&T, Verizon Wireless, T-Mobile and Sprint are fairly scrupulous about text spam on their networks. The application-to-person fee to send text messages is a big deterrent to spammers unlike in email where the sender doesn't incur a per-sender fee.

Fix email first
So this question bears asking: Has the CAN-SPAM Act prevented unsolicited emails, or has it made straighter arrows out of straight arrows?

Perhaps Sen. Snowe and Sen. Nelson should first focus their attention on making sure that the CAN-SPAM Act is actually doing its job of preventing email spam.

Certainly this writer is afflicted daily by hundreds of spam emails hitting his Yahoo accounts and a regular barrage of Russian, Chinese and Nigerian emails in Microsoft Outlook email. It seems the spammers know how to override the Internet service providers' filters.

What spam has done is erode the appeal of email as a marketing communications vehicle. But the ISPs' adherence to CAN-SPAM rules has made life even more difficult mainly for retailers, marketers and publishers who have to be mindful of keywords, images and content that might be mistaken for spurious content -- and thus blocked and blacklisted.

Those were the unintended consequences of the CAN-SPAM Act. Will mobile's m-SPAM Act also generate similar issues?

What about issues surrounding the scrubbing of lists? Who will pay for that job? How long will it take to get a clean list back? Will this headache kill the appeal of opted-in commercial SMS for carriers?

Mobile marketing is only now gaining budgets and respectability across industry categories. So it makes sense to lay the rules of the road ahead of the trip. But there is such a thing as overkill.

Working through its two leading lobbies -- CTIA: The Wireless Association and the Mobile Marketing Association -- the mobile industry has done much to advance consumer best practice guidelines and standards for all players in the ecosystem.

The associations and most mobile marketing firms and ad agencies scrupulously adhere to double opt-in permissions and opt-out protocols.

These entities also stress that SMS lists cannot be sold to third-parties unless consumers have given their express permission to receive text messages from others -- all documented, with opt-ins and bold writing in Terms & Conditions.

Hopefully, the Senators' bill will incorporate some of those practices in their legislation.

Eyes wide open
Mobile marketers should not sleep through the discussion or possible passage of the m-SPAM Act.

Maybe the m-SPAM Act itself is not a bad idea. But the creation of a do-not-text registry will have a chilling effect on the key mobile marketing channel -- SMS.

With the existence of a no-text list, consumers will be loathe to opt into legitimate communications from marketers, retailers and publishers out of fear that they will be spammed by others when this is clearly not the case.

If the lawmakers want to lean on the marketing industry, then they can persuade ISPs and Web email services such as Yahoo to close the one loophole open to spammers: the ability to send SMS texts from email accounts.

No doubt closing the email-to-SMS route is one less benefit to online consumers, but that channel has the greatest potential for abuse if SMS marketing becomes as mainstream as email marketing.

Mobile marketing firms and agencies must write Sen. Snowe and Sen. Nelson to make sure that the m-SPAM Act does not include a do-not-text registry. In this case, the cure is worse than the poison.