FCC Adopts Major Rule Change re: TCPA Consent Requirements

On December 13, 2023, the Federal Communications Commission (the “FCC”) adopted proposed changes to the rules governing the prior express written consent requirements of the Telephone Consumer Protection Act (the “TCPA”). This rule change will have a significant impact on the telemarketing and lead generation industry.

One-to-One Consent Requirement

Under the new rule, a website that obtains consent from consumers to receive robocalls or robotexts will be required to obtain consent for one specific seller at a time. The common practice of using a single instance of a consumer’s prior express written consent to be contacted by multiple sellers will no longer be permitted. This new “one-to-one” consent requirement prohibits a website that obtains a consumer’s consent from sharing that consumer’s information with multiple business. This effectively dismantles the lead generation industry in its current form, as the FCC makes clear:

We now make it unequivocally clear that texters and callers must obtain a consumer’s prior express written consent from a single seller at a time on the comparison shopping websites that often are the source of lead generation, thus closing the lead generator loophole.

Paragraph 29 (page 11) of the Proposed Rule Change.

“Logically and Topically Related”

Additionally, the seller’s product or services must be “logically and topically related” to the content of the website where the consumer consent is obtained. For example, a website that offers comparison shopping of debt consolidation products cannot obtain consumer consent for sellers of home energy products. The FCC chose not to provide a definition of “logically and topically related,” but it will likely be narrowly construed.

Why the Change?

The FCC argues the changes are needed to reduce abusive consent practices, where a single consumer consent authorizes robocalls and robotexts from “potentially hundreds” of sellers—a frequency the FCC feels most reasonable consumers would not expect to receive.

Deadline to Comply

There is a six-month implementation period. Thus, businesses (including both lead generation websites and sellers) have until roughly the end of the summer 2024 to comply.

Experienced counsel can help assist with all aspects of TCPA compliance and litigation. It is not too soon to begin preparing for compliance with the FCC’s proposed rule changes now, and our firm can provide specific guidance on how the new rule changes may affect your business.