FCC One-to-One Consent: The New Rules for Telemarketing

The following article is a condensed version of the "FCC: 1x1 Consent" webinar on March 21st, 2024. The webinar featured panelists from the compliance space who shared their insights on consent and content sharing in relation to their industry as well as the internet as a whole.

We had the following guests join us:

• Issac Shloss (Chief Product Officer, Contact Center Compliance)
• Gayla Huber (President, Integrishield)
• Puja Amin (Founding Partner, Troutman Amin, LLP)

Our guests shared their experiences and views on compliance in the marketing and advertising space. We’ve divided the sections as per the conversations they dived into during the webinar.

Understanding REACH, TCPA, and Consumer Protections

Consumer robocalls have been a growing concern, leading to the creation of organizations like the Responsible Entities Against Consumer Harassment (REACH). REACH advocates for practices that protect consumers from unwanted calls while ensuring legitimate businesses can connect with interested customers. This effort aligns with the Telephone Consumer Protection Act (TCPA), a law that regulates telemarketing calls and text messages.

Here's a breakdown of key points regarding TCPA regulations and consumer protections:

• Prior Express Written Consent (PEWC): This is essential for using automated dialers or prerecorded voice messages. Businesses must obtain a consumer's written agreement before contacting them using these technologies.
  
  
• One-to-One Consent: New FCC rules require a more specific approach to consent. Previously, a consumer's consent to be contacted by one company could be sold to multiple sellers. Now, the consumer's consent needs to be specific to the seller they provided it to. This ensures a single point of contact and reduces unwanted calls.
  
  
• Maintaining Records of Consent: The burden of proof for valid consent falls on the caller or texter. Businesses must keep detailed records documenting how they obtained a consumer's consent. The Federal Trade Commission (FTC) also has new recordkeeping requirements for telemarketers, with the implementation date still being finalized.
  
  
• Do-Not-Call Lists Remain Important: Consumers can still register their phone numbers on do-not-call lists to prevent unwanted telemarketing calls. However, it's important to note that these lists don't apply to calls made with a consumer's prior consent.
  
  
• Unclear Areas and Legal Counsel: The definition of "logically and topically related" within the context of consumer consent remains unclear. Courts may need to define this term in the future. Businesses are strongly advised to consult with legal counsel to ensure their practices comply with the TCPA and other relevant regulations.

By understanding these regulations and the work of organizations like REACH, consumers can be better protected from unwanted calls, and businesses can operate with greater clarity on compliant messaging practices.

Telemarketing Rules and Consumer Consent

New One-to-One Consent Requirements

• The Federal Communications Commission (FCC) has established new rules requiring a more specific approach to obtaining consumer consent for telemarketing.
• Previously, a company could acquire consent from a consumer and then sell that consent to other businesses.
• Now, under the one-to-one consent rule, the consumer's consent must be specific to the company they provided it to.
• This means companies cannot pre-sell consumer consent and limit unsolicited calls.

Impact on Lead Sellers and Lead Buyers

• The one-to-one consent requirement significantly impacts the lead generation industry (lead gen).
• Lead sellers must identify the lead buyer at the time of consent collection.
• This essentially means they are selling the lead with proof of consent, rather than just selling the consent itself.
• Lending Tree is an example of a company that will need to adjust its funnel to comply with the new rules.

How Businesses Can Stay Compliant

• Businesses can take steps to ensure compliance with the new regulations:some text
  • Limit the number of partners listed on consent forms (recommended: 5-6).
  • Make sure all partners are visible on the website without scrolling.
  • Use unchecked boxes for consent.
  • Avoid using a "select all" button, or make it smaller and less prominent than other options.
• Companies should consult resources like the TCPA World website for guidance on obtaining consent under the new rules.

Additional Considerations

• The burden of proof for obtaining valid consent falls on the caller, not the consumer.
• Companies must carefully consider web page layout, font size, and color to ensure clear and conspicuous consent language.
• Businesses should be wary of practices like pay-for-placement in lead generation, which is no longer compliant under Consumer Financial Protection Bureau (CFPB) rules.
• Verifying leads to confirm names and phone numbers is recommended to avoid potential legal issues.
• Businesses are responsible for maintaining records of consumer consent according to FTC requirements.

Consumer Education and Industry Advocacy

• Consumers are unlikely to be directly informed about these new rules. Their experience will mostly involve encountering new website layouts for consent forms.
• The National Consumer Law Center (NCLC) is an organization that advocates for consumer rights in this area.
• REACH is an organization that works to ensure compliant marketing practices and advocates on behalf of the lead generation industry.

Overall, these new regulations aim to provide consumers with greater control over their telemarketing experience by requiring clear and specific consent before they are contacted. Businesses must adapt their practices to comply with these rules and can seek guidance from industry organizations like REACH.

To sum up,

The webinar and our guests took this opportunity to share great stories and potential things to know for businesses of all sizes. Let us know your thoughts and experiences related to compliance and consent in marketing.

Thank you to all our enthusiastic attendees for joining us for the webinar. We hope for your participation and continued support in the future.