MOBILE MARKETING, NOT MOBILE LAWSUITS

1. MOBILE MARKETING, NOT MOBILE LAWSUITS • Presented by: Shaun Petersen and Allison Harrison Mac Murray, Petersen and Shuster, LLP | spetersen@mpslawyers.com | aharrison@mpslawyers.com

2. WHAT DOES THE MOBILE “ROAD” LOOK LIKE? • “Calling” Cell Phones: • Knowing how to properly call or text customer’s cell phones for: • Sales calls, • Service appointment reminders, and • Any other reason. • Advertising Online and on Mobile Devices • Knowing how to make required disclosures are clear and conspicuous • Knowing what additional endorsement or contest disclosures are required Mac Murray, Petersen and Shuster, LLP | spetersen@mpslawyers.com | aharrison@mpslawyers.com

3. RULES OF THE ROAD FOR CALLING AND SEDNING TEXT MESSAGES TO CONSUMERS’ CELL PHONES Mac Murray, Petersen and Shuster, LLP | spetersen@mpslawyers.com | aharrison@mpslawyers.com

4. CALLS AND TEXT MESSAGES TO CELL PHONES • General Rule: Cannot use an ATDS or a prerecorded message to call a cell phone without the called party’s prior consent • Non-telemarketing Calls- must have “prior express consent” • Telemarketing/Advertising Calls- must have “prior express written consent” • Electronic signature is sufficient • Specific requirements must be met (discussed below) • Mixed purpose calls treated as telemarketing calls • The same rules apply to telephone calls to cell phones and text messages to cell phones. • Note: Consent is not required if the call is made without using an ATDS or a prerecorded message Mac Murray, Petersen and Shuster, LLP | spetersen@mpslawyers.com | aharrison@mpslawyers.com

5. WHAT IS AN ATDS? • Current Interpretation- any equipment with the capacity to dial telephone numbers without human intervention • Focus is on the capacity of equipment– not the manner in which calls are actually dialed • Recent court decisions have limited the inquiry to the equipment’s present capacity • One touch dialing on system without capacity to autodial is ok Mac Murray, Petersen and Shuster, LLP | spetersen@mpslawyers.com | aharrison@mpslawyers.com

6. WHAT IS PRIOR EXPRESS CONSENT? • TCPA / FCC Regulations- do not define this term • FCC Ruling- subject to certain limitations, a consumer provides prior express consent for non-telemarketing calls by providing his/her cell phone number to a business • Court Opinions • Overwhelming majority of courts have deferred to the FCC Rulings • Exception- S.D. Florida held in 2013 that the FCC Ruling is invalid (currently being appealed to the 11th Circuit) Mac Murray, Petersen and Shuster, LLP | spetersen@mpslawyers.com | aharrison@mpslawyers.com

7. HOW TO OBTAIN PRIOR EXPRESS WRITTEN CONSENT • Summary of Requirements • Written Agreement. Consent must be obtained in a written agreement, which includes the signature of the person providing consent. An electronic signature is sufficient to effectuate a written agreement in accordance with the E-SIGN Act. • Identity of the Seller. The agreement must specifically indicate the seller(s) to whom consent is being provided. • Telephone Number. The agreement must include the cellular telephone number at which the person consents to receive calls. • Affirmative Action. The consumer must take some affirmative action to indicate his/her assent. Mac Murray, Petersen and Shuster, LLP | spetersen@mpslawyers.com | aharrison@mpslawyers.com

8. HOW TO OBTAIN PRIOR EXPRESS WRITTEN CONSENT (Cont.) • Summary of Requirements • Mandatory Disclosures. The agreement must clearly and conspicuously disclose: • That the person is authorizing the seller to make telemarketing calls; • That calls will be made using an ATDS (or prerecorded message, if applicable); and • The person is not required to provide consent as a condition of purchasing any good/services. • Documentation. The seller has the burden of proof to show that consumers provided written consent to be called. Recommended to keep all records for at least 5 years from the last date the consent is relied upon to make a call. Mac Murray, Petersen and Shuster, LLP | spetersen@mpslawyers.com | aharrison@mpslawyers.com

9. HOW TO OBTAIN PRIOR EXPRESS WRITTEN CONSENT:PAPER CONSENT • Paper Consent Forms • Printed or typed name and signature • Include date • Customer Agreements/Order Forms/Other Documents • Conspicuousness of the disclosure? • Consent required to make purchase? • Include separate consent provision and have customer specifically consent to this provision by signing/initialing the provision or checking an "I agree" box. • Recordkeeping. Keep copies of all written agreements (storing in electronic format is sufficient) Mac Murray, Petersen and Shuster, LLP | spetersen@mpslawyers.com | aharrison@mpslawyers.com

10. HOW TO OBTAIN PRIOR EXPRESS WRITTEN CONSENT:ONLINE CONSENT FORMS • Customer Agreements/ Order Forms / Other Agreements. Same considerations as outlined for Paper Consent Forms. • Affirmative Action and Signature. • Clicking “Submit” button sufficient? • Check box required? • Clear and Conspicuous Disclosures. All disclosures should be made in immediate proximity to the button that consumers will use to provide their electronic signature and assent to the agreement • Recordkeeping. What data to collect? • Name and phone number • Time/date • IP address • URL • Exact disclosures used at the time the consumer provides consent Mac Murray, Petersen and Shuster, LLP | spetersen@mpslawyers.com | aharrison@mpslawyers.com

11. STATE SPECIFIC REQUIREMENTS • Certain states prohibit telemarketing calls to cell phones regardless of whether ATDS is used • AZ, LA, NJ, TX, WY • EBR exemption in WY • Express consent required in other states (no specific requirements set forth by states on how to get consent) • Some states specifically prohibit text message advertisements • AZ, CA, RI, WA • “Existing relationship” exemptions in AZ, CA and RI • Clear and affirmative consent required in WA Mac Murray, Petersen and Shuster, LLP | spetersen@mpslawyers.com | aharrison@mpslawyers.com

12. RULES OF THE MOBILE AND SOCIAL ADVERTISING ROAD: Making clear and conspicuous disclosures on all mobile devices Mac Murray, Petersen and Shuster, LLP | spetersen@mpslawyers.com | aharrison@mpslawyers.com

13. ONLINE MARKETING:GENERAL CONSIDERATIONS • Take into account the various devices and platforms which the consumer may view the advertisement. • When space is not an issue, make the disclosure on the same page as the corresponding offer (i.e. your website) • When space is an issue, use hyperlinks to make the required disclosures (i.e. Twitter) • Design advertisements so that “scrolling” is not necessary to find the disclosures. If its unavoidable, use text or visual cues to help the consumer find the disclosures • Display disclosures before the consumer makes a decision to buy or submit credit application • Repeat disclosures on lengthy websites Mac Murray, Petersen and Shuster, LLP | spetersen@mpslawyers.com | aharrison@mpslawyers.com

14. ONLINE MARKETING:GENERAL CONSIDERATIONS • The same consumer protection laws that apply to other media also apply online, including on mobile devices • Required disclosures must be clear and conspicuous • Considerations for “clear and conspicuous:” • How close the disclosure is to the offer • How prominent the disclosure is to the offer • Whether other parts of the ad distract attention from the disclosure • Whether the disclosure needs to be repeated • Whether the language is easily understood by the intended audience Mac Murray, Petersen and Shuster, LLP | spetersen@mpslawyers.com | aharrison@mpslawyers.com

15. ONLINE MARKETING:GENERAL RULES • Hyperlinks to lead to disclosure: • Make the link obvious • Label the hyperlink appropriately to convey the importance, nature and relevance of the information it leads to • Use hyperlink styles consistently, so consumer knows when a link is available • Place the hyperlink as close as possible to the relevant information it qualifies and make it noticeable • Take consumers directly to the disclosure on the click-through page • Assess the effectiveness of the hyperlink by monitoring click-through rates and make changes accordingly Mac Murray, Petersen and Shuster, LLP | spetersen@mpslawyers.com | aharrison@mpslawyers.com

16. ONLINE MARKETING:GENERAL RULES (Cont.) • Hyperlinks to lead to disclosure: • Don’t use block-able pop-up disclosures • Be aware of technological limitations: • Device limitations • Brower limitations • Software limitations (i.e. iPhones and Flash) Mac Murray, Petersen and Shuster, LLP | spetersen@mpslawyers.com | aharrison@mpslawyers.com

17. ENDORSEMENTS AND TESTIMONIALS • FTC updated its guidelines in 2009 • Material connections between advertisers and endorsers must be disclosed if not readily apparent • Ownership interests, paid referrals, etc. • Often an issue with respect to blogs/tweets • FTC suggestions #endorser, #paid, #ad, or #promo • Twitter “Promoted by ______” labels Mac Murray, Petersen and Shuster, LLP | spetersen@mpslawyers.com | aharrison@mpslawyers.com

18. ANY QUESTIONS? Mac Murray, Petersen and Shuster, LLP | spetersen@mpslawyers.com | aharrison@mpslawyers.com

19. Share an important takeaway you received from this session using hashtag #DD17 for a chance to win an iPad. Contact Info Full Name: Company: Job Title : Email: Shaun Petersen Allison Harrison Mac Murray, Petersen and Shuster, LLP Partner Associate spetersen@mpslawyers.comaharrison@mpslawyers.com