So one of the biggest shifts coming out of the Biden-era FTC was the focus on telemarketing arising out of “consent farm” lead generation tactics.

The “telemarketing sweep” back in July, 2023 caught call center operators and lead generators unaware when the FTC suddenly began enforcing newly-adopted positions on the Telemarketing Sales Rule.

Most problematically was the idea that consent had to be obtained “directly” from a consumer by a seller and on a one-to-one basis.

I had a little chat with the FTC back in 2023 and the agency mostly backed off pursuing lead generators and marketers after my comments on behalf of R.E.A.C.H.:

Nonetheless, the new TSR directive was soon mirrored by the FCC in a rule that would have expanded the TCPA–but that was famously struck down by the Eleventh Circuit Court of Appeals and is dead (at least for now.)

However, the FTC continues to take the position that all prerecorded marketing calls–including AI and prerecorded voicemails– can only be made with one-to-one consent obtained DIRECTLY by a seller (i.e. no lead generation allowed).

Here’s the key language from the FTC’s “business guidance” website:

Does a consumer’s written agreement to receive prerecorded message calls from a seller permit others, such as the seller’s affiliates or marketing partners, to place such calls? No. The TSR requires that the written agreement identify the single “specific seller” authorized to deliver prerecorded messages. The authorization does not extend to other sellers, such as affiliates, marketing partners, or others.

May a seller obtain a consumer’s written permission to receive prerecorded messages from a third-party, such as a lead generator? No. The TSR requires the seller to obtain permission directly from the recipient of the call. The seller cannot rely on third-parties to obtain permission.

Pretty clear. And pretty deadly.

Under the TSR companies CANNOT use prerecorded, artificial voice or AI outbound calls or messages unless they received one-to-one consent “Directly” from the consumer.

Eesh.

Now the TSR gets much less attention than the TCPA because only the FTC can enforce the TSR and, well, not too many people expect Trump’s FTC to do much (anything?) around enforcement.

But “robocalls” may be the one place where the FTC bucks the trend and becomes somewhat active, so we will need to be mindful here.

Bottom line– although the TSR itself does not expressly require one-to-one consent the FTC’s formal guidance continues to so direct. So be careful out there.