This past December, the Federal Communications Commission (FCC) adopted rules intended to close the so-called “lead generator loophole” in the Telephone Consumer Protection Act (TCPA). According to the FCC, “lead-generated communications are a large percentage of unwanted calls and texts” received by consumers.
To close this “loophole,” the FCC amended the definition of “prior express written consent” to “make it unequivocally clear” that lead generators and comparison-shopping websites (that generate a lead for a “seller”) must obtain a consumer’s consent to receive “robocalls” and “robotexts” (i.e., sent utilizing an autodialer, or artificial or prerecorded voice) “one seller at a time,” rather than having a single blanket consent applicable to multiple sellers at once. The rules were published in the Federal Register on January 26, 2024, with a delayed effective date of January 27, 2025, for the “one-to-one consent requirement.”
The amended definition of “prior express written consent” reads as follows:
“The term prior express written consent means an agreement, in writing, that bears the signature of the person called that clearly and conspicuously authorizes no more than one identified seller to deliver or cause to be delivered the person called advertisements or telemarketing messages using an automatic telephone dialing system or made using an artificial or prerecorded voice. Calls and texts must be logically and topically associated with the interaction that prompted the consent and the agreement must identify the telephone number to which the signatory authorizes such advertisements or telemarking messages to be delivered.” – 47 C.F.R. Sec. 64.1200(f)(9), as amended.
The one-to-one consent must be in response to a “clear and conspicuous” disclosure to the consumer, and the content of the robocalls/texts must be “logically and topically associated with” the website where the consumer gave consent. For example, a consumer giving consent on a car loan comparison shopping website does not consent to get robotexts or robocalls about loan consolidation.
What does this look like in practical terms? According to the FCC, the rule does not prohibit comparison-shopping websites from obtaining leads through valid consent and “provides multiple opportunities for responsible comparison-shopping websites to obtain leads for potential callers.” For example, a comparison-shopping website may offer a check box list that allows the consumer to specifically choose each individual business that they wish to hear from; or a click-through link to a specific business so that the business itself may gather express written consent from the consumer directly.
The compliance burden will be on the caller/texter to prove that they have consent that satisfies the FCC’s amended TCPA regulations – not the lead generator website. Therefore, credit unions using these services (web-based or otherwise) should ensure that vendors are updating their policies, procedures, practices, and agreements to comply with the new requirements by next January’s effective date.
In this rulemaking, the FCC also:
- Codified the agency’s long-held position that the National Do-Not-Call (DNC) Registry protections apply to text messages as “calls” under the TCPA. The DNC regulations now explicitly restrict telemarketing calls and text messages to wireless numbers when the consumer has added the number to the National DNC Registry.
- Implemented certain changes for wireless service providers, requiring them to block text messages from specific numbers when notified by the FCC of illegal texts from those numbers.
- “Encouraged” wireless providers to make email-to-text an opt-in service to reduce the number of fraudulent text messages consumers receive that originate from email addresses rather than telephone numbers. The FCC has proposed to make this a requirement in the future.
The final rule is effective March 26, 2024. However, the “one-to-one consent” requirement will not be effective until January 27, 2025. The amendments related to wireless carriers and text blocking are delayed until July 24, 2024, to allow providers additional time to comply.
For more information, click here to read the rule in its entirety.