In January 2024, the FCC adopted a Report and Order that closed the so-called “lead generator loophole,” and also included a number of new consent-related requirements. The new lead generator provision, implemented through a modification to the FCC’s definition of “prior express written consent,” requires “one-to-one” consent for telemarketing calls or texts subject to the TCPA prohibition on autodialed calls or texts and pre-recorded/artificial voice calls to wireless numbers absent consent or an emergency purpose. The FCC has now received Office of Management and Budget approval for its new “one-to-one” consent and other consent-related rule changes adopted in the Report and Order. Compliance with the new provisions is required by January 27, 2025.

With the adopted one-to-one rule, sellers can no longer rely on a single consumer consent provided through a lead generator or comparison-shopping site for such calls or texts. Even if a lead generator website lists multiple sellers on its webpage, the Commission emphasized that the business must obtain prior express written consent from the consumer separately for each seller, which the FCC indicated can be obtained through a variety of means, including separate opt-in boxes the texted party can check for each seller selected. The FCC also emphasized that under the new rule, there also must be a “clear and conspicuous” disclosure (which is already a requirement of the prior express written consent rule) as to sellers being selected, rather than in buried, fine-print or in a separate page reached through a link.