6 minute read | December.20.2023
On December 13, 2023, the Federal Communications Commission (“FCC”) adopted new rules under the Telephone Consumer Protection Act (“TCPA”) that require comparison shopping websites, lead generators, and other companies obtaining consent on behalf of third parties to obtain a consumer’s prior express written consent to receive robocalls and robotexts one marketing partner at a time. Through this rule, the FCC seeks to end the practice of relying on a single consent from the consumer to apply to multiple marketing partners at once. The FCC’s announcement can be found here, and the Report and Order providing an in‑depth justification for the rules is available here.
Here’s a look at what the FCC is trying to accomplish, what the new rules require and what this means for your business:
The TCPA generally requires prior express written consent for marketing calls and texts (i) containing an artificial or prerecorded voice, or (ii) sent using an “automatic telephone dialing system.” While the TCPA defines “prior express written consent” with precision, it is silent on the extent to which consent can be obtained for more than one caller at the same time.
As a result, it is relatively common practice for comparison shopping websites, lead generators and other similar companies to ask consumers to provide a single prior express written consent to agree to receive robocalls or robotexts from any or all of the company’s relevant marketing partners, some of whom may in turn provide those “consents” through a daisy-chain of downstream sellers. While the FCC acknowledges that these types of comparison shopping or lead generation services provide a real benefit to consumers, they also raised concern that the one-to-many consent practices have led consumers to receive robocalls and robotexts from tens, or hundreds, of marketing partners on the basis of a single consent—numbers that most reasonable consumers would not expect to receive.
Due to this concern and perceived ongoing “abuse” of the system, the FCC determined that this “lead generator loophole” must be closed by amending the definition of prior express written consent to require that consent “clearly and conspicuously authorize[] no more than one identifier seller to deliver or cause to be delivered to the person called or texted advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice.”
While the Report and Order takes effect 30 days after publication in the Federal Register, the amendments to the definition of prior express consent shall not become effective until twelve (12) months after publication – likely in late 2024 or early 2025.
To prepare for the new rules, lead generation or comparison shopping sites should consider taking the following actions before the rules go into effect:
Please note we anticipate the FCC will continue to make efforts to clarify its interpretation of the TCPA in light of what it considers to be fairly liberal and inaccurate perceptions of what the law requires. For example, the FCC also took the opportunity in these latest rules to codify that the National Do-Not-Call Registry protections apply to text messages (not just calls), and to informally state its position (in a footnote) that if a consumer revokes consent for TCPA-covered marketing communications on one particular communication chain, the caller must no longer contact the consumer at that number (rather than applying the opt-out request only to the specific chain on which the opt-out request was sent). As a result, companies should keep an eye out for additional rulemaking activity by the FCC in 2024.
The TCPA is a complex and litigious law. We strongly recommend confirming compliance efforts with legal counsel.