Some GREAT NEWS to share if you are trying to figure out how to save your small business as a result of the FCC’s 1 to 1 consent Order.

First, what is the 1 to 1 consent Order? On December 13, 2023, the FCC issued an Order which COMPLETELY changed lead generation as we know it.

By seeking to close the lead generation loophole, the Order requires:

1. Express consent to be made directly between the consumer and the seller. Currently, marketing companies can obtain consent for multiple companies to contact consumers – but in twelve months, that practice will be illegal!
2. The scope of consent is one that can be reasonably inferred from the purpose of the website on which the consumer provided consent. Texts and calls that result from consumer consent obtained on comparison shopping websites must be logically and topically related to that website.
3. The texter or caller may not rely on comparison websites or other types of lead generators to retain proof of consent for the call the seller makes. A caller who is unable to meet its burden of proof in demonstrating that it had valid consent to initiate and robocall or robotext to the individual consumer would be liable under the TCPA for making such a call.

As for small businesses, the FCC has clearly stated that it disagrees with commenters that suggest that requiring one-to-one consent would be detrimental to consumers and small businesses.

Still, in its Order, the FCC stated:

“Nowhere in the record has any commenter provided specific evidence to demonstrate that such a rule would harm their businesses in a way that would outweigh the need to protect consumers, including small businesses, from the “nuisance” and “invasion of privacy” resulting from unwanted automated and prerecorded calls.”

BUT, thanks to the Small Business Administration’s request, the FCC seeks further comment to conduct further economic analysis on the impact of this proposal on small entities.

So, if you want to tell the FCC how this decision will affect you, keep reading!

The Deadline to submit comments has been set: February 26, 2024.

We have some guidance for all of you TCPA dwellers who have been asking questions like:

Will the FCC listen? 

“The Commission is committed to monitoring the impact that the rule has on [small] businesses and to assist small businesses with complying with the one-to-one consent rule.”

What does the FCC want to know? 

• Whether and how the Commission can further minimize any potential economic impact on small businesses in complying with our one-to-one consent requirement for prior express written consent under the TCPA?
• Are there ways to further clarify or refine this requirement to further minimize any compliance costs?
• What impact would such refinements have on consumers?
• Are there further outreach efforts or other ways the Commission can assist small businesses in complying with our one-to-one consent rule?

What else should you say? 

Here’s some guidelines directly from the FCC’s Order describing evidence that was missing from the record:

• Specific Evidence that demonstrates that such a rule, 1 to 1 consent, would harm your business in a way that would outweigh the need to protect consumers.
• Offer evidence of what fraction of your business involves robocalls and robotexts and thus how much of their total business would be affected by the new rule.
• Indicate how much it would cost to modify your websites and processes to disclose to the consumer who will call and get consent for each such caller.
• Quantify the cost to small businesses of disclosing their names before consumer’s consent.
• Are there benefits to businesses, including small businesses, of disclosing the business name before consent.
• What is the cost of implementation of the rule for all businesses, large and small?

How do you submit a comment?

Comments may be filed using the Commission’s Electronic Comment Filing System (ECFS).

• Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://www.fcc.gov/ecfs. (SEE BELOW)
• Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing.
• Filings can be sent by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission’s Secretary, Office of the Secretary, Federal Communications Commission.
• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701. U.S. Postal Service first class, Express, and Priority mail must be addressed to 45 L Street NE, Washington, D.C. 20554.
• Effective March 19, 2020, and until further notice, the Commission no longer accepts any hand or messenger delivered filings. This is a temporary measure taken to help protect the health and safety of individuals, and to mitigate the transmission of COVID-19. See FCC Announces Closure of FCC Headquarters Open Window and Change in Hand-Delivery Policy, Public Notice, 35 FCC Rcd 2788 (OMD 2020).

How do you submit a comment electronically?

STEP 1: Go to www.fcc.gov/ecfs

STEP 2: Select and Click on “Submit a FILING”

STEP 3: Enter the Docket Nos. 02-278 and 21-402 and Select the populated Title

STEP 4: Enter the Filer Information

STEP 5: Enter the Type of Filing as “Comment”

The additional fields “File Number, Report Number and Bureau ID Number” can be BLANK.

STEP 6: Enter the Address of “Filer, Law Firm or Author”

STEP 7: Attach/click or drop files

Note: Once the document is attached, no additional changes to the document may be made.

STEP 8: Click Yes for Email Confirmation and Select Checkbox

Note: Your file name will be public.

STEP 9: Continue to Review Screen

Note: This Screen will only allow you to review the information entered on the previous page related to the filing and filer. The attachment may NOT be edited.

If the information is accurate, check the box “I am not a robot” and Click Submit.

STEP 10: Confirmation Screen

Note: An email confirmation will be sent to the email address entered in Step 4.