Current standards for revocation of consent to remain in place
Lead generators and the companies that rely on them can breathe a sigh of relief. On Friday evening, less than three days before an onerous regulation was set to go into effect, the Federal Communications Commission (“FCC”) reversed itself, postponing the effective date by twelve months, to January 26, 2026. The regulation, known as the One-to-One Consent Rule, would have drastically hampered the lead generation business by requiring consumers to be advised, at the time of their initial consent, what companies would have the right to solicit them, even if the consumers wished to make an open-ended request to receive, for example, text messages from the lowest bidder.
On January 27, 2025, there will be a significant legal change that will fundamentally affect the operations of all lead generators and those who rely on them. Many businesses are aware that the Telephone Consumer Protection Act (TCPA) is a federal law that requires prior express written consent in order to send auto-dialed calls, pre-recorded "robocalls" or mass promotional SMS texts. The TCPA also applies to AI-generated calls. But 27 days into the new year, the FCC will implement a new requirement that prior express written consent must be obtained on a "one-to-one" basis.
Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group, published an article in Bloomberg Law entitled “New Laws, Consumer Actions Will Help Us Say Goodbye to Junk Fees.” In the article, Andy discusses the increasing significance of surcharges and undisclosed fees impacting consumer purchasing decisions.
Although not final as of the time this is being published, the FCC is poised to make life difficult for lead generators and the companies that rely on them. In late November, the FCC proposed a rule that would require texters and robocallers obtain prior express written consent that is specific to a single seller in order to comply with the Telephone Consumer Protection Act. The problem, according to the FCC, is the “lead generator loophole,” which currently allows lead generators to obtain consent on behalf of multiple sellers from consumers who complete a single lead form, often hyperlinked to a long list of sellers. The FCC is expected to pass the rule during in mid to late December, effective in 2024. Another possible change will be extending the National Do-Not-Call Registry to text messages instead of just phone calls.
Dual-purpose phones can qualify as “residential” numbers to support a TCPA action
The Telephone Consumer Protection Act (“TCPA”) and its regulations prohibit calls and text messages to residential telephone subscribers who have registered their phone numbers on the national do-not-call list maintained by the federal government. While business lines are not eligible to be registered on the national do-not-call list, in practice there is nothing that bars such registration. As a result, TCPA litigation sometimes requires a determination as to whether a phone line is used for residential or business purposes. This issue arises more frequently in the current gig-economy era, because many cell phone owners use their devices for both personal and business purposes.
Source: NAAG Press Release
The National Association of Attorneys General (“NAAG”) sent a letter to the Federal Communications Commission (“FCC”) on behalf of 41 states’ attorneys general commending the FCC for its leadership in combatting robocalls and sharing their commitment to working collaboratively with the FCC via information-sharing agreements. The lead states in this effort are Colorado, Tennessee and North Carolina.
One billion spoofed calls touted short-term health insurance
But Don’t Expect the Database Until 2020 at the Earliest
Companies that communicate with consumers through autodialed telephone calls or mass text messages should be aware that a federal appeals court has just struck down two key, pro-plaintiff Federal Communications Commission (“FCC”) interpretations of the Telephone Consumer Protection Act (“TCPA”). Although the ruling did not provide clear limits to what marketers can and cannot do, it certainly provides marketers and debt collectors with important tools that should make life more difficult for class-action plaintiffs.
Supreme Court considering solicited fax rule for faxed advertisements
Hospital had compliant consent language on its consent forms
With the decline in available means to contact consumers by phone, ringless voicemail is an increasingly popular marketing technique. While the FCC petition for clarification as to whether ringless voicemail triggers TCPA obligations was withdrawn, regulation of the practice is by no means clear.
The Federal Communications Commission (FCC) is seeking comments on proposed rules regarding carrier phone changes and charges for additional services.
The Second Circuit rules in favor of companies in the question of consumers' permission revocation.
D.C. Court of Appeals vacates FCC order from 2006.
Text messages are treated like phone calls under the TCPA.
Mortgage-servicing calls will still require prior express consent.
DataGuidance article entitled "FCC 'treading on thin ice' with TCPA Declaratory Ruling," draws directly on quote from Scott Shaffer.
Schools, utilities join debt collectors, health care providers and the Government itself.
Abercrombie & Fitch sent text message to cell phone’s prior owner
FCC to treat text message senders differently from fax broadcasters
Industry leaders accused of allowing “insider trading”
Commissioner’s speech hints at more rulings to come
Eleventh Circuit allows autodialed calls to later-acquired cell phone number
“Human intervention” was key to avoiding TCPA liability
CLIENT ALERT
Marketers who communicate with consumers on mobile devices and smart phones must stay current with the FCC's new rulings.
FCC schedules a vote on the commissioner’s proposals for June 18th.
Court rules that a person does not have to actually send a fax in order to be considered the legal sender.
FCC clarifies a confusing TCPA provision, leaving businesses hoping for clarity on other points.
Compliance with the TCPA consent requirements remains a daunting task fraught with peril.
Court of Appeals ruling offers broad interpretation of prior express consent.
A current FCC review could significantly reduce TCPA litigation.
Sprint also agrees to preventative measures.
FCC Creates Exception To TCPA’s Prior Express Consent Requirement.
In Luskin v. Seminole Comedy, Inc., decided on June 19, 2013 in the Southern District of Florida, Judge Robert Scola denied a motion to dismiss a case concerning text messages, even though the plaintiff had provided his telephone number to the text sender.
In Mais v. Gulf Coast Collection Bureau, decided on May 8, 2013, in the Southern District of Florida, the court awarded the plaintiff $7500 for fifteen calls to his cell phone made by a debt collector.
As a reminder, last year the FCC revised its rules for auto-dialed calls to completely eliminate the established business relationship (EBR) exemption for calls to landline numbers. The new regulations go into effect on October 16, 2013.
On May 9, 2013, the FCC clarified the extent to which sellers can be held liable for robo-calls and texts sent by third-party marketers on their behalf.