By Elisa D’Amico
Today, in a vote of 4-1, the FCC approved the “one to one” rule proposed earlier this year as Notice of Proposed Rulemaking (“NPRM”) FCC 23-21 (the “Rule”). In doing so, the FCC has without a doubt changed the lead generation industry – including attorney marketing – in a very big way.
The Rule mandates that “prior express written consent to receive calls or texts must be made directly to one entity at a time” and requires that consumers provide consent directly to the seller and not through an intermediary. The FCC gives marketers six (6) months from today to comply with this Rule. Whew.
Tick, tock, tick, tock.
The Rule states in pertinent part:
We now make it unequivocally clear that texters and callers must obtain a consumer’s prior express written consent from a single seller at a time on the comparison shopping websites that often are the source of lead generation, thus closing the lead generator loophole.
Requiring one-to-one consent will end the current practice of consumers receiving robocalls and robotexts from tens, or hundreds, of sellers – numbers that most reasonable consumers would not expect to receive.
But wait, there’s (a lot) more. Truth is, there’s a ton to unpack here, and while attorneys and marketers have already spent a great deal of time anticipatorily navigating this “one to one” consent proposition, as of today, it’s on!
With that in mind, here are the top takeaways for anyone who touches online marketing, whether lead generator, call center, third-party attestation software company, or law firm:
1) THE CONSUMER MUST INDIVIDUALLY SELECT EACH SELLER CONSENT.
“If the web page seeks to obtain prior express written consent from multiple sellers, the webpage must obtain express consent separately for each seller.” So, one site can collect multiple seller consents but the consumer must individually select each one.
The FCC suggests that lead generators may utilize check boxes to obtain consent for multiple sellers on a single web page: “the website may offer a consumer a check box list that allows the consumer to specifically choose each individual seller that they wish to hear from.” Or, the consumer may click on a “clickthrough link to a specific business so that the business itself may gather express written consent from the consumer directly.”
2) MUST BE A LOGICAL AND TOPICAL RELATION BETWEEN THE WEBSITE AND THE CONSENT OBTAINED.
“[R]obotexts and robocalls that result from consumer consent obtained on comparison shopping websites must be logically and topically related to that website.” This means that the consent obtained on a web page must be both logically and topically related to the website itself. A consumer providing consent on a debt consolidation website does not consent to get robotexts/robocalls about credit monitoring.
3) THE DO-NOT-CALL (DNC) PROTECTIONS OF THE TCPA NOW APPLY TO TEXT MESSAGES.
A business must now have prior express invitation or permission from a consumer before sending a marketing text to a wireless phone number that is on the DNC.
4) LEAD GENERATORS MUST TAKE POSSESSION OF CONSENT RECORDS PRIOR TO MAKING CALLS.
Texters and callers “may not, for example, rely on comparison websites or other types of lead generators to retain proof of consent for calls the seller makes. And, in all cases, the consent must be from the consumer. “Fake leads” that fabricate consumer consent do not satisfy the TCPA or our rules.” This is a huge change so don’t miss it – callers must take possession of consent records before calls are made rather than rely on another entity to retain those records for them. It’s time to pull your own weight, folks.
5) MARKETERS HAVE A SIX (6) MONTH WINDOW TO COMPLY.
“[W]e nonetheless give texters and callers, and any third party websites they obtain consent through, a six-month implementation period to make the necessary changes to ensure consent complies with our new requirement.” The clock is ticking, and marketers have six (6) months to implement compliant processes.
As you can see, this is huge! It you don’t trust me, listen to the Czar!