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FCC Issues New Consent Requirements for Certain Marketing Communications
Thursday, December 21, 2023

In an important regulatory update that may significantly impact your organization’s marketing strategies, the Federal Communications Commission (FCC) adopted amendments to the Telephone Consumer Protection Act (TCPA) with a purported goal of “closing the lead generator loophole.”

Adopted on December 13, 2023, the most notable portion of the amendments revise consent requirements for telemarketing and text message marketing communications. Although the FCC’s focus was enhancing consumer protection, it’s important to be aware that the TCPA also applies to business-to-business (B2B) communications. The order released on December 18, 2023 can be found here. Key elements of this new rule include:

Individualized Consent for Each “Seller”

  • Organizations must obtain consent for each individual “seller,” which is the ultimate marketer, and not the lead generator. This means that comparison shopping sites and other lead generators must include a separate checkbox for each individual entity wishing to rely on the consent for telemarketing or text message marketing communications. Any consent that purports to be on behalf of multiple entities, whether by hyperlink or in the body of the consent language, will be insufficient.
  • Any consents that were obtained before the new amendments become effective that do not comply with the new requirements will not be grandfathered in.
  • There is no apparent exception for affiliated entities.

Content Must be “Logically and Topically” Related to the Consent Source

  • The content of telemarketing calls and text messages must be “logically and topically” associated with the interaction that prompted the consent. While the FCC declined to adopt a definition of “logically and topically,” it provided the following example: “a consumer giving consent on a car loan comparison shopping website does not consent to get robotexts or robocalls about loan consolidation.”
  • Businesses will therefore have to exercise some discretion in determining whether their telemarketing or text message marketing content is “logically and topically” related to the consent source. But this new requirement is almost certain to drive litigation in the near future.

Limitation of the New Rule

  • The new consent requirements will apply only if the marketer is using an “autodialer” or an artificial or prerecorded voice. However, what constitutes an “autodialer” has itself been the subject of much litigation. Although many courts now interpret “autodialer” to mean only those systems that use a number generator to produce numbers, that view is not unanimous, and other courts still deem any equipment used to select numbers from a predetermined list to be an “autodialer.”

Implementation Period

  • Although other portions of the new rule will be effective sooner, the revisions to the consent requirements are expected to be effective in December 2024.

What the New FCC Consent Rule Means for Your Business

  • Implement Clear Consent Strategies: It has always been extremely important for businesses to ensure they have the appropriate consents for telemarketing and text message marketing. The new rule underscores that it’s crucial for businesses to reassess how they gather and use consents for these purposes. Businesses should also keep clear records of consents, including the language used, and when, how, and from where the consent was obtained.
  • Content Alignment: Particularly if an organization may offer a variety of products, thought should be given to whether it will need to implement a process to ensure telemarketing and text message marketing content moving forward will remain “logically and topically” related to the transaction in which the consent was obtained.
  • Reassess Existing Consents and Lead Generation Processes: The changes regarding how consent may be obtained will call into question many consents that were previously considered valid under the TCPA. Companies will need to assess their existing consents to determine which of these may no longer be valid after the new rule goes into effect. In addition, companies should reach out to their lead generation partners to understand how those partners plan to adjust so that the leads they provide are compliant with the new rule.
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