UPDATE: On Friday, January 24, 2025, the Eleventh Circuit ruled in Insurance Marketing Coalition v. FCC, vacating the FCC’s one-to-one consent rule and sending it back to the agency. The court determined that the rule exceeded the FCC’s authority under the TCPA. Given that the rule would have introduced substantial new consent requirements for marketing calls, this decision provides a significant relief for calling parties. Stay tuned for additional updates.
The Federal Communications Commission (FCC) has introduced new regulations under the Telephone Consumer Protection Act (TCPA) which are set to go into effect on January 27, 2025. This new rule will directly impact businesses engaged in telemarketing, text messaging, and other forms of communication using automated systems. These changes are designed to strengthen consumer protection and ensure that companies obtain explicit, individualized consent from each customer before contacting them using automatic dialing systems or prerecorded voices.
Under the revised rule, sellers of information can no longer rely on a single customer consent provided by a lead generator. Previously, businesses could obtain consent through third-party partners, such as lead generators, which would then apply to all the telemarketers associated with the seller. Now, each seller must separately obtain consent from a consumer before making calls or sending texts that fall under the wireless number prohibition.
The key stipulation is that the marketer must clearly list the entities on whose behalf it is seeking consent. This means that while a marketer can still obtain consent for several sellers, it must be transparent about who is involved and ensure that consumers are fully informed about which company is seeking permission.
For a business to comply with the new TCPA rules, the consent it obtains must be “clear and conspicuous.” The FCC has defined this standard as meaning that the consent disclosure must be “apparent to a reasonable consumer.” The consent should not be buried in fine print, hidden behind hyperlinks, or difficult to read. However, determining whether a disclosure is “clear and conspicuous” can be complex, as it depends on the context and the specific interaction with the consumer.
The scope of communication that is permitted once consent is granted will be closely tied to the context in which it was given. The FCC has stated that calls and texts must be “logically and topically associated” with the reason the consumer initially provided consent. In other words, the content of the communication must be relevant to the purpose or context of the consumer’s interaction with the seller.
While the FCC has not provided a strict definition of what constitutes “reasonably inferred” content, it has suggested that businesses err on the side of caution. When in doubt, sellers should limit the content to what a consumer would clearly expect based on the purpose of the website or location where consent was provided. This means that businesses must carefully consider what is appropriate to send to a consumer and avoid overstepping the bounds of what the consumer likely expected when they gave consent.
For more guidance, contact Vincent J. Costa, Esq. at 631-738-9100.
