FCC Adopts New TCPA Rules for Lead Generation Communications – Advertising, Marketing, and Branding

Marketers who use “robocalls” or “robotexts” (i.e., calls or texts initiated using an “automated telephone dialing system”) to solicit sales or promote products or services.¹ voice calls made using artificial or prerecorded voices) must comply with a new set of rules from the Federal Communications Commission (FCC). In a December 2023 order, the FCC adopted rules requiring marketers to obtain consumer consent to receive robocalls and robotexts “one merchant at a time.” It claimed to close the “loophole in lead generation.” Once the rules go into effect, lead-generating businesses and websites, such as shopping comparison sites, will no longer be able to obtain a single consent for regulated calls and text messages from multiple sellers. Rather, “prior express written consent” must be obtained separately for each identified seller.

The new rules also require that “one-on-one” consent must be made after “clear and conspicuous” disclosure to the consumer consenting to receive robocalls or robotexts from the designated merchant. . Additionally, the rule requires that robocalls and robotexts generated by a shopping comparison site based on consumer consent obtained are “logically and locally” related to that website. The stated purpose is to ensure that consumers do not receive robocalls or robotexts that exceed the scope of their consent, which “can be reasonably inferred from the purpose of the website for which the consumer has provided consent.” Explaining the intent behind this change, the FCC said that consumers who consent on auto loan comparison shopping websites do not consent to receive robotexts or robocalls about loan consolidations. .

The new robocall/robotext message rules are part of larger regulations implementing the federal Telephone Consumer Protection Act (TCPA). This law creates a private right of action for consumers to recover up to $1,500 in statutory damages for most calls. Text messages that violate that requirement. The TCPA is already a major source of class actions, and the new rules will certainly provide new ammunition to aggressive plaintiffs’ courts that are constantly pushing the market for new targets. .

National phone ban registry

In furtherance of the objectives of the TCPA, the FCC’s order also formally extends the National Do Not Call (DNC) registry’s existing protections that apply to voice telemarketing calls to marketing text messages. The National DNC Registry framework overlaps with the TCPA rules governing robocalls and robotexts, but is broader in scope because it governs nearly all functions. allCommercial telephone solicitations to consumers whose telephone numbers are listed on the National DNC Registry. do not have It is initiated using an automatic telephone dialing system or an artificial or prerecorded voice.

Some courts have previously assumed that marketing text messages are already covered under the framework of national DNC registries as a subset of “calls” to wireless numbers. However, the new regulations explicitly codify this principle. The FCC’s new order allows marketers to still contact consumers on the national DNC registry using text messages, but to do so they must[t]This statement unnecessarily introduces ambiguity into the national DNC registry framework by omitting reference to an important exception to the current rules that allow most non-autodialed telemarketing calls to be made to consumers. Inject. “Established Business Relationship” with Merchant FCC makes text message marketers the same long-established business relationship exception available to telemarketers who make voice calls other than autodialers. The question of whether it was intended to prohibit reliance must be considered as follows. Future procedures.

Below we have summarized other notable aspects of the FCC’s recent order.

“One-on-one consent”

The FCC is concerned that consumers receiving unwanted phone calls and text messages when their numbers are shared or sold. To protect consumers, the FCC amended the existing requirement for “prior express written consent” for robocall and robotext marketing to include “signed, signed, and We will require a written consent that clearly and conspicuously authorizes the following: One specific seller calls that person, sends a text advertisement or telemarketing message using automatic phone dialing system or artificial or pre-recorded voice, and delivers it to that person. To do something. Calls and texts must be logically and locally linked to the interaction that prompted consent. The agreement must identify the telephone numbers on which the signatory authorizes the delivery of such advertising or telemarketing messages. ”²

Specifically, the FCC will require marketers to obtain “one-on-one consent” before contacting consumers. The FCC prohibits certain practices, such as requiring consumer consent to share information with “partner companies” or “marketing partners.” This includes cases where a list of these organizations is only available in small print or via hyperlink. Under the new order, “lead information is not allowed to be shared with a daisy chain of ‘partners.'” Rather, “texters and callers must obtain the consumer’s prior express written consent for calls or text messages from one merchant at a time.” Same Company Ownership There is no clear exception to the FCC’s “one-to-one consent” requirement for affiliates that operate under the umbrella of or share a common brand.

In response to concerns raised about the new rules, the FCC said it does not restrict comparison shopping or prohibit parties from purchasing leads from lead generators. The FCC believes this new rule will help callers and texters demonstrate compliance with the TCPA by making it easier for callers and texters to prove that they have valid consent for text messages and calls. . Although the FCC has not provided specifics on what is and is not sufficient consent, the FCC does recommend the use of a “checkbox list” that allows consumers to individually select each merchant they wish to hear from. are being specifically considered.

“Clear and conspicuous” disclosure

The new rules expand disclosure requirements to say that disclosures must be “clear and conspicuous” (i.e., “obvious to a reasonable consumer”). The FCC also asserts that if a consumer’s signature is required to comply with the Electronic Signature Act, “all elements of an electronic signature must be present.” Despite requests from commenters to specify what steps marketers must take to obtain a valid electronic signature, the FCC granted consent without further explanation. chose to rely on a 2012 order allowing electronic signatures as a way to do so.

Things related to “logical and topical”

The FCC does not limit the number of telemarketers that can be listed on a website for purposes of the prior express written consent rule, as long as consent is obtained separately for each particular seller. However, as a practical matter, the content of the call or text message must be “logically and locally” related to the forum for which the consumer consented, so the parties listed are similar. is needed. As noted above, the text of the amended regulations defining “prior express written consent” states that the consent given must be logically and topically related. Alternating current That prompted agreement. The FCC declined to adopt a definition of “logical and topical,” saying only that texters and callers should limit content to “what consumers would clearly expect.”

next step

Recognizing that implementing new rules regarding changes to the TCPA regarding prior express written consent requirements for robocalls and robotexts will take time, the FCC has adopted a 12-month transition period. Therefore, new rules will not become effective until 12 months after publication in the Federal Register or, if approval is required, 12 months after approval by the Office of Management and Budget. The FCC will announce an effective date as soon as it is determined. However, changes codifying the applicability of the National DNC Registry to text message marketing will become effective 30 days after publication in the Federal Register.

impact

These trends impact a wide range of marketers and lead generation businesses, including the most obvious ones:

• Companies that operate shopping comparison sites and other lead generation businesses that collect leads from multiple sellers.




• Businesses that purchase leads from shopping comparison sites or similar lead generation businesses.




• Businesses that rely on TCPA consent for autodialed calls or text messages collected using consent forms that reference multiple merchants (including affiliates).




• Businesses that collect TCPA consents sell products or services that are not discreetly offered or advertised on the consented website or elsewhere.

If you have questions about how the new FCC rules affect your business, or if you need assistance, please contact one of the Cooley attorneys listed below.

footnote

1. The TCPA defines an automatic telephone dialing system as “(A) a device having the capability of storing or generating telephone numbers to be called using a random or sequential number generator, and (B) having the capability of dialing such numbers. ” is defined.

2. The regulation also requires that the contract include a statement clarifying that: (a) By entering into a contract, the consumer authorizes the seller to deliver telemarketing calls or text messages to the signatory using an automatic telephone dialing system or an artificial or prerecorded voice. To give permission. (b) the consumer is not required to sign or contract (directly or indirectly) to accept such phone calls or text messages as a condition of purchasing property, goods, or services; .

The content of this article is intended to provide a general guide on the subject. You should seek professional advice regarding your particular situation.

Popular articles: US media, communications, IT and entertainment