Ofcom Gives O2 the All-clear

Telecoms regulator Ofcom has confirmed that mobile operator O2 has now met its obligation to roll out its 3G services to at least 80% of the UK population. This follows Ofcom's notice to O2 in February that it would shorten its licence by four months if it did not comply with its rollout obligation by 30 June 2008. O2 acquired its 3G licence in 2000 for £4,030 million. Ofcom estimated that a reduction of the licence term by four months would have been equivalent to a significant financial sanction of at least £40 million.
The rollout obligation requires each of the five holders of a 3G licence to roll out their networks to enable the provision of 3G services to at least 80% of the population from 31 December 2007. The other four licensees, H3G, Orange, T-Mobile and Vodafone, demonstrated that they were in compliance with this obligation on this date.
Ofcom says that it will conduct a further assessment to ensure that these licensees remain in compliance on 31 December 2008.

Ofcom Proposes PRS Rule Change

Communications regulator Ofcom has proposed new rules to tighten the regulation of television and radio programmes that rely heavily on premium rate telephone services (PRS). The proposed new Broadcasting Code rules will ensure that programmes that invite viewers and listeners to interact or participate are not vehicles for promoting commercial, revenue-generating services. In addition, the rules will ensure that viewers are adequately protected,  and that advertising is kept separate from editorial content, as required under European legislation.
The new Broadcasting Code rules state that:
Where PRS is used in a programme for audience participation, it must not be given undue prominence within the programme.

The programme must consist primarily of content other than the promotion of the PRS.

The primary purpose of the programme must be editorial, and any commercial activity associated with the PRS, such as generation of call revenues, must be secondary to that purpose.

Broadcasters may only charge viewers via PRS call charges and not by other means, such as credit card or direct debit.

The new rules take into account the judgement made by the European Court of Justice in October 2007 that a quiz TV show could be classified as teleshopping. Ofcom says it considers that the principles of this case should apply to other types of programmes. If adopted, the proposed rules will apply to both radio and television but will be particularly significant to Participation TV services.
Ofcom says that these services will either need to ensure that they comply with the new Broadcasting Code rules and therefore remain classified as editorial services, in which case quiz, psychic and adult chat TV, as currently broadcast, will need to change significantly in order to comply. Alternatively, these programmes types will need to be reclassified as teleshopping, in which case they will be subject to advertising minutage rules and the BCAP (Broadcast Committee of Advertising Practice) Advertising Standards Code, enforced by the Advertising Standards Authority. However, says Ofcom, services which fall into a prohibited advertising category, such as adult chat on unencrypted channels and psychic practices, cannot be broadcast as teleshopping. This means that, unless such services change to comply with the new Broadcasting Code rules, they can no longer be broadcast.
“The new rules mean these channels face a much tougher regulatory regime which they must comply with,” says Ofcom Chief Executive, Ed Richards. “Ofcom will ensure that programmes only use premium rate telephone lines where there is sufficient editorial justification. This will further distinguish between television advertising and editorial content for the benefit of viewers."
The deadline for responses is 22 May 2008. You can see the full statement, ‘Participation TV Part 2: keeping advertising separate from editorial’, here.

EC Keeps Watching Brief on Mobile Content Safety

Mobile operators serving 550 million customers in the European Union are putting in place safeguards to ensure that children can safely access content on mobile phones, as part of a programme coordinated by GSM Europe,  the European arm of the GSM Association.
One year after the introduction of GSM Europe’s European Framework for Safer Mobile Use by Younger Teenagers and Children, self-regulatory codes of conduct are now in place in 21 countries of the European Union. GSM Europe expects similar codes to be introduced in the remaining six countries of the EU, as 24 mobile operators and content providers covering all the Member States have signed the framework.
The framework sets out a number of measures, such as access control mechanisms, classification of commercial content, and the raising awareness and education, which operators should implement to ensure that children can safely access content on their mobile phones.
“As mobile broadband networks proliferate, enabling Europeans to easily access a rich selection of content via their handsets, our industry is moving in a timely fashion to ensure the necessary safeguards are in place to enable parents to have confidence in their children using these mobile services safely,” says GSM Europe Chair, Kaisu Karvala.
Viviane Reding, EU Commissioner for Information Society and Media, says that  GSME and European mobile operators should be congratulated for the work they have done so far in trying to establish national codes of conduct for safer mobile use by children and young people, but says that more needs to be done.
“Mobile operators have taken an important step towards making online technologies safer for children and enhancing transparency,” she says. “In some countries, there is, however, still substantial work to be done to ensure that these principles are really put into practice. I will continue to follow this very closely, because practical measures and concrete implementation are what really matter to children and their parents. I strongly encourage mobile operators to cooperate in this implementation process with non-profit organisations and other stakeholders engaged in child safety. I will come back to this issue this autumn to see whether further measures by the Commission are required.”
The mobile industry is calling on EU policy-makers to provide support in achieving the objectives of the framework, in particular, the development and distribution of educational material to teachers and parents.

Europe

’s mobile operators will also regularly review the national codes of conduct to ensure they remain fit for purpose.

MMA Addresses Best Practice Issues

The Mobile Marketing Association (MMA) recently held its Consumer Best Practices (CBP) Industry Forum in Denver, Colorado, hosting more than 140 delegates. The event was led by the MMA’s Consumer Best Practices Committee, which is comprised of leading mobile operators, aggregators and content providers, and addressed topics that will be at the forefront of the industry for the coming year. Topics of discussion at this year’s event included Multi-media Messaging (MMS); adult content and age verification; binary free content downloads; user-generated content and communities; marketing to children; location-based services; and compliance (monitoring and health measurement).
The MMA Consumer Best Practices Guidelines Committee is comprised of participants from the following member companies: Alltel Wireless, AT&T Mobility, Bango, Buongiorno S.p.A., Chapell & Associates, denuo Group (a Publicis Company), Jamster, Lavalife Mobile, Limbo Mobile, mBlox, Inc., MMA, MTV Networks, MX Telecom, NeuStar, Inc., Qmobile, Inc., SinglePoint, Sprint, Sybase 365, Telescope, Teligence, The Walt Disney Company, T-Mobile USA, Twistbox Entertainment, VeriSign, Inc. and Verizon Wireless.
The MMA's Consumer Best Practices Guidelines were published in December 2007 and are updated twice a year. The most recent version of the guidelines can be viewed here.

MMA Updates Best Practice Guidelines

The Mobile Marketing Association (MMA), which represents more than 500 member companies worldwide, has released the latest edition of its Consumer Best Practices (CBP) Guidelines for cross-carrier mobile content services in the United States. The MMA says the Guidelines, updated twice annually, have become the baseline set of rules for cross-carrier mobile content services in the United States. The Guidelines can be downloaded here.
The guidelines are produced by the MMA's CBP Committee, whose mission is to develop and continually update a cross-carrier code of conduct that balances consumer protection with the revenue opportunities. The guidelines provide measures of acceptable and unacceptable practices for all players in the ecosystem to follow for cross carrier messaging, interactive voice response (IVR) and mobile web services in the US.
“The success of a mobile marketing campaign is measured largely by the user experience," says Chris Black, Director of Mobile Marketing at AT&T Mobility, and Co-Chair of the CBP Committee. “By representing a cross-section of carriers, technology companies, brands, media companies and consumer advocates, the CBP Committee is uniquely qualified to provide the level of timely, hands-on guidance that the industry needs as the mobile channel grows."
Highlights of the December 2007 CBP Guidelines include guidelines for free-to-end-user (FTEU) guidelines for messaging services; sweepstakes and contests; mobile web and Interactive Voice Response (IVR) opt-in and billing modifications; affiliate marketing; and participation TV.
“The CBP have been instrumental in creating a play book for cross carrier services in the United States," says  Laura Marriott, MMA President and Co-Chair of the CBP Committee. “We applaud the efforts of all in our industry in creating a model which will be replicated in markets around the globe.”
The new guidelines also reflect contributions from new CBP sub-committees, including IVR, Marketing to Children, Participation TV and Mobile Web. The sub-committees were formed to help facilitate the rapid development of the guidelines to ensure the MMA stays at the forefront of industry development and self-regulation.
The MMA Consumer Best Practices Guidelines Committee is comprised of the following member companies: Alltel Wireless, AT&T Mobility, Bango, Chapell & Associates, denuo Group (a Publicis Company), Jamster, Lavalife Mobile, mBlox, Inc., MMA, MTV Networks, MX Telecom, NeuStar, Inc., Qmobile, Inc., SinglePoint, Sprint Nextel, Sybase 365, Telescope, Teligence, The Walt Disney Company, T-Mobile USA, VeriSign, Inc. and Verizon Wireless.
The MMA will host its annual CBP Industry Forum in Denver on 16 January 2008. The Forum provides the opportunity for participants to comment and input into the guidelines and best practices for the mobile marketing industry in the United States. 

MEF Launches AMS Directive Guide

The Mobile Entertainment Forum (MEF) Europe has launched its guide to the AMS (Audiovisual Media Services) Directive at a members' workshop with the Department for Culture, Media and Sport (DCMS) and Ofcom. The MEF’s ‘Practical Guide' aims to help the many mobile entertainment companies affected by the Directive understand both its impact, and the potential opportunities it will create across the single market. The guide was compiled by the MEF's European chapter in partnership with leading international law firm, Denton Wilde Sapte.
This new legislation will update and replace the existing Television without Frontiers (TWF) Directive, which currently provides the regulatory framework in the EU for the television and broadcast industry. Under the AMS Directive, existing rules for traditional TV will be enforced for mobile multimedia services, including mobile
television broadcasting (linear) and video on-demand (non-linear) services.
The guide, which has also been translated into French, German and Italian, is now available on the MEF website. (www.m-e-f.org) It provides practical information on how the Directive is set to affect businesses and services. The Directive aims to harmonise conflicting rules which currently apply in different member states. These changes should allow mobile companies operating across Europe to more fully exploit opportunities across the single market.
The AMS Directive has been approved by the European Parliament and will be adopted by the end of 2007, after which member states have two years to pass legislation bringing the AMS Directive into force at a national level. The DCMS is the Government department responsible for this in the UK and will be holding a series of stakeholder meetings to confer with the industry during this process.
“The mobile entertainment industry value chain is at the cutting-edge of the drive
towards a converged media environment, says Denton Wilde Sapte Partner, Ingrid Silver. “ The AMS Directive represents a huge shift for the industry into being a harmonised, legislative environment. This will have ramifications for businesses of all sizes, particularly if they intend to have an advertising, sponsorship or product placement element to their TV or TV-like business models."
According to an MEF-based survey conducted in October 2007, over 50% of the mobile entertainment business is likely to be affected by the Directive.
“When implemented, the AMS Directive will place a number of new guidelines on companies operating in the mobile sector providing audiovisual content services,
particularly in relation to advertising and sponsorship,” says MEF Europe Chair, Gerard Grech. “This guide is therefore timely in providing strategic regulatory guidance and advice on the possible impact and opportunities the Directive creates for all involved in the mobile audiovisual value chain.”

DMA Urges Bluetooth Caution

The Direct Marketing Association (DMA) is urging marketers to exercise caution when considering the permission implications of Bluetooth following the Information Commissioner’s Office’s (ICO’s) recent decision to exclude Bluetooth from its guidance on compliance with the Privacy and Electronic Communications Regulations (PECR). 
The DMA says it has always felt that the spirit of the PECR, in terms of permission and control, should apply to any electronic messaging medium. The DMA Mobile Marketing Council’s Best Practice advice reflects this and, to this extent, the DMA believes that the ICO’s decision is not material to such Best Practice advice. The ICO has reasoned that Bluetooth, as a local transmission technology, does not use a public electronic communications network and so is outside of the scope of the PECR.
Nick Fuller, chair of the DMA Mobile Marketing Council, says:
“The fact remains that Bluetooth may now be in a ‘no man’s land’, especially since the technology itself precludes the ability for a consumer to give permission before an advertiser sends a message (the only possible exception being the pairing of devices – an impractical step for commercial messaging).   
“Whilst it is understandable that the ICO sees Bluetooth as falling outside of the PECR legislation in terms of its underlying technology, it is important that the principles of the PECR are not lost. I am increasingly speaking to Bluetooth marketers who appreciate the principle of permission and who approach potential applications accordingly, but it would be naive to assume that this will always be the case. We recommend to our members to err on the side of caution when considering the permission implications of Bluetooth. We would certainly like to have a more definitive legislative position. However, the question remains as to under whose auspices, now that it is not the ICO's.”

Baby You Can Spam My Phone

Bluetooth marketing is in the news again, following the Information Commissioners Office’s decision to update its guidance for marketers on the Privacy and Electronic Communications Regulations 2003. The updated guidance removes Bluetooth from the list of communication methods that require the user’s opt-in permission.
There has long been debate about whether Bluecasting, or Bluespamming as opponents of the practice prefer to call it, is legal or not. This ICO’s decision looks set to settle the debate once and for all, but it is also causing concern among industry bodies and others concerned with privacy issues.
Nick Fuller, Chair of the Direct Marketing Association’s Mobile Marketing Council, issued a statement which read:
“Whilst it is understandable that the ICO sees Bluetooth as falling outside of the PECs (Privacy in Electronic Communications) legislation in terms of its underlying technology, it is important that the principles underlying the PECS are not lost…We recommend to our members to err on the side of caution when considering the permission implications of Bluetooth, but we would certainly like to have a more definitive legislative position. The question is under whose auspices now that it is not the ICO's.” 
Others are concerned that the ICO’s decision may open the floodgates, and encourage brands that have looked at, but ultimately shied away from, Bluecasting, to take the plunge, creating an environment where mobile phone users will be bombarded with Bluetooth messages when they walk past shops, bus stops and billboards.
You can see more coverage of this issue, and join in the debate, here.
And you can view the latest version of the ICO guidance, updated at the beginning of October, here.

Regulatory Framework Needed, says Davies

Million 2-1 Director Scott Davies has told Mobile Marketing that the Ofcom report into premium-rate phone line scandals, released yesterday, makes clear the need for a clear regulatory framework for the premium rate industry.
The report found that found some broadcasters were “in denial” about their responsibilities, and revealed a “systemic failure” to comply with rules. In particular, the report suggests that there is a critical lack of transparency in the relationships between service providers, producers and broadcasters, leading to a lack of clarity about legal responsibilities.
“Many of the recommendations in Ofcom’s report are based around having legally compliant systems, processes and audit trails” says Davies. “This is the first of two ticking bombs that will affect the premium rate/broadcast industry. Firstly, the report highlights problems with the regulatory framework, something that Million 2-1 has been talking about for the past six months. There is clearly a need for a clear regulatory framework that defines roles both between ICSTIS and Ofcom, and sets out the responsibilities of broadcasters and service providers, so that no confusion exists and the kind of scandals that we’ve seen in the last six months could not happen.
“Secondly, the forthcoming Gambling Act that is due to come into force in September 2007 will re-define many  premium rate formats as ‘games of chance’ and therefore make the operation of them by broadcasters and service providers illegal, unless they have an External Lottery License. 
“As a lottery licence holder, we welcome regulation and the forthcoming Gambling Act, since it is expected that much of the confusion around premium rate competitions and quizzes will be dealt a final, clarifying blow when it comes into force in September, giving a real opportunity to return to high revenue streams and customer confidence.”

"Keep it Legal" says Bass

Jonathan Bass, managing director of mobile agency Incentivated  has advised companies to check that their mobile marketing promotions stay on the right side of the law, after he responded to a newspaper ad offering consumers the chance to win a year’s free membership of a national gym chain, which, he says, broke the rules in a number of ways.
“There were three main problems with it” says Bass. “Firstly, on the print ad promoting the competition, there was no mention of the terms and conditions, and nothing to explain that by texting in, your details would be entered on to the company’s database so that they could contact you. Secondly, there was no mention of how to opt out. Finally, there no mention of the cost, which apart from anything else, has been proven to reduce response rates.”
According to Bass, the mistakes could well have been made through lack of awareness of the rules, rather than an overt desire to break them, but this, he points out, would make little difference, if the company involved were taken to task over the campaign.
“If  you take the Information Commissioner's maximum £3,000 fine and multiply that by, say, 1,000 people complaining, you would be looking at a serious amount of money” says Bass. “I suspect the promotion was probably handled in-house. There’s nothing wrong with companies doing it themselves, but they need to be sure they are doing it properly.”
In the light of this and other campaigns he has seen that break the rules, Bass is also calling on companies to publish their mobile marketing optout rates.
“If you’re doing things right, our experience shows that the number of people opting out of your mobile campaigns will be far less than 10% per annum, and this is a perfectly acceptable figure” says Bass. “If a company can’t quote its mobile optout rate, it’s either because it is not providing an optout, which is against the law, or because it’s afraid to do so, because it is over 10%, which suggests it is spamming the people it is targeting.”

Incentivated

Information Commissioner

Crazy Frog’s Christmas Shock

‘Crazy Frog’ service provider mBlox has been hit with an unwanted Christmas present in the shape of a £40,000 fine and formal reprimand by telecoms regulator  ICSTIS. mBlox has also been ordered to pay refunds to all those who complained to the regulator. The adjudication follows a lengthy investigation and subsequent Oral hearing with mBlox, Jamba, and their legal representatives.
Although Jamba itself was not fined, the fine will be passed on to Jamba by mBlox.
“This is a contractual arrangement we have with all our clients, and all our clients understand that” mBlox Marketing Communications Manager Ariela Freed told Mobile Marketing.
In a 28-page ruling, ICSTIS found that the promotions for the service had been misleading, and not clear enough in terms of the costs involved. While the Hearing Panel found that a great deal of thought had gone into producing the advertisements for the service, little time had been spent on the terms and conditions. These omitted significant information, and were unclear about what the service entailed. As a result, the Hearing Panel found that the promotions required a lot of interpretation, application and patience from consumers.
ICSTIS received a total of 338 complaints about the service, many from consumers who were unaware of the ongoing subscription nature of the service. mBlox now has 20 days in which to appeal against the decision to the Independent Appeals Body.
In a statement, mBlox said it accepted ICSTIS’s adjudication on the appropriateness of the Crazy Frog promotion, but that it is considering requesting a judicial review of the interpretation of the ICSTIS code that has held it responsible for the action of a third party such as Jamba.
mBlox went on to say that it has made representations to ICSTIS that in future the regulatory framework should make the people who create and promote mobile content, the content (information) providers, accountable for the content transmitted to consumers and the marketing practices they adopt.
“Given mBlox’s specialised role in the mobile business value chain, mBlox believes that ICSTIS should be empowered to regulate the content providers directly” the statement said.
mBlox also pointed to the role it has played in helping to clarify and implement the regulation of misleading advertising through its role in industry associations such as the Mobile Entertainment Forum (MEF). MBlox executive chairman Andrew Bud is Co-Vice Chair of the MEF.
Finally, mBlox said it will continue to play a full part within the regulatory framework to support ICSTIS and ensure, as far as possible, that the regulations are not breached by any content provider that supplies services to the public.

ICSTIS

mBlox

Mobile Marketing Dos and Don'ts

There is a lot of confusion around what you can and can't do with a mobile marketing campaign. So who better to clear things up than Robert Dirskovski, Head of Interactive Media at the Direct Marketing Association. Over to you Robert...

The bare facts
Mobile marketing is regulated by legislation originating from the European Union and implemented in the UK in November 2003 – the Privacy & Electronic Communications Regulations. It places mobile (and other electronic media, including email) under an opt-in regime, which means consumers must provide their prior consent before you may send them marketing information via their mobile.

Data collection
In the UK, the Government implemented the Regulations to allow companies to communicate with their existing customer base, provided an easy to use unsubscribe mechanism is provided. Companies may communicate with those who have made a purchase or have made a purchase enquiry, until such time they state they do not wish to receive further information. This element of the Regulations is often referred to as the soft opt-in. It is important to remember that the unsubscribe mechanism must be used on each and every occasion you send a message.
If you are collecting customer data with a view to sending marketing material, there are a number of requirements which you must observe.
First, you must consider whether you plan to market your own goods/services only, or whether you wish to market third party goods/services as well. You must make it clear at the point of data collection how the data will be used. You may not revise the consent at a later date.
You must demonstrate that consumers have given a positive indication that they wish to receive mobile marketing messages from you. This may be achieved in a number of ways. For example, they may tick a box next to a statement which says" Please tick here if you are happy to receive mobile marketing messages from ABC Ltd" Or "Please provide your mobile number if you are happy to receive mobile marketing messages from ABC Ltd"

Offshore is off-limits

Jonathan Bass, managing director of mobile marketing agency Incentivated, has warned mobile marketers to ensure they stay on the right side of the law when outsourcing the broadcasting of SMS campaigns. According to Bass, many companies are inadvertently breaking the law by transferring customer data outside the EU, in order to execute campaigns, something that breaches the 8th principle of the Data Protection Act.
"In this day and age, we all have to know what we’re doing, and if you let an IT department loose on a mobile marketing solution without reference to the legislation, they will get brands in trouble" he says. "There are some non-EU competitors in places like South Africa and India, who have a natural cost advantage because they are overseas. For clients, however, there is an implication with respect to the 8th Principle of the Data Protection Act, which says that you must not send data out of the EU, except to a small number of specific countries. So when companies send a mobile number and name or a mobile number and postcode to a company in South Africa or India, they are breaking the law, even if the marketing team is unaware of what the IT department is up to."
Other SMS broadcast solutions, says Bass, are in breach of the PECA (Privacy and Electronic Communications) Regulations, because they broadcast the message, but do not permit the recipient to reply, possibly to unsubscribe.
"If you’re using a cut-down, online, non-account managed, one-way marketing solution, you should ask for a response mechanism. If your provider won’t provide it, stop using them" says Bass.
There’s more information on the Data Protection Act and the Privacy and Electronic Communications Regulations, on the Information Commissioner’s Office website.

www.incentivated.com