The Matrix

Under the TCPA, certain calls utilizing an automated telephone dialing system or made using a prerecorded or artificial voice are illegal without express consent, which the FCC has interpreted for marketing calls to mean express written consent. The new rule additionally will require consent “that clearly and conspicuously authorizes no more than one identified seller.” The FCC states that it is taking action “to close the lead generator loophole and stop consent abuse by unscrupulous robotexters and robocallers.” The FCC’s rulemaking follows an enforcement action brought by the FCC in late 2022 in which it entered an order against a company that allegedly operated websites including TCPA consent disclosures whereby the consumer “consented” to receive robocalls from “marketing partners,” which were only visible to the consumer if the consumer clicked on a specific hyperlink to a second website that contained the names of 5,329 entities. This new FCC rule follows a LinkedIn post from the Federal Trade Commission in July 2023 in which the agency suggested that consent to send robocalls could not be obtained on behalf of a third party.

What is and is not allowed under the new proposed FCC rule?

Although, if enacted, the new consent language will be subject to considerable interpretation (and quite possibly litigation), the FCC’s report and order concerning the proposed rule suggests that:

• obtaining consent for a hyperlinked list of sellers is not likely acceptable;
• providing a list of sellers that consumers can affirmatively separately select in order to be contacted is likely acceptable, either with check boxes or via a clickthrough link to a specific business so that the business itself may obtain appropriate consent from the consumer directly;
• the one-to-one consent must come after a clear and conspicuous disclosure to the consenting consumer that they will get robotexts and/or robocalls from the seller; and
• robotexts and robocalls that result from consumer consent obtained on comparison shopping websites must be logically and topically related to that website (so, for example, a consumer giving consent on a car loan comparison shopping website does not consent to get robotexts or robocalls about loan consolidation).

Importantly, these new consent requirements apply when sellers and lead generators are utilizing an automated telephone dialing system or made using a prerecorded or artificial voice, as regulated by the TCPA. Therefore, callers and texters may utilize other options for providing comparison shopping information to consumers, such as manually dialed or non-prerecorded or artificial voice calls or text.

When would the proposed rule go into effect?

Once enacted, the FCC will provide marketers and sellers a six-month implementation period to make necessary changes to ensure consent complies with the new requirement. If the FCC approves this rule at its December 13, 2023 meeting, the rule likely would go into effect near the end of summer 2024. In the meantime, entities will want to evaluate their lead generation practices and their marketing vendors.