Yesterday, by a vote of 4-1, the Federal Communication Commission (FCC) adopted a new rule amending its regulations implementing the Telephone Consumer Protection Act (TCPA) to close what it refers to as the “lead generator loophole.”  The new rule represents a major change for the online lead generation industry, including comparison shopping websites, by requiring lead generators to obtain consumer consent to receive robocalls and robotexts from one seller at a time, rather than having a single consent apply to multiple sellers at once.  The FCC also approved a new rule requiring mobile wireless providers to block certain text messages and is encouraging providers to require consumer opt-in for texts originating from email addresses.  Stay tuned for information about a webinar that we will be holding on the new FCC rules.

Change to TCPA consent requirement.  The TCPA and the FCC’s implementing rules require callers to obtain consumer consent for certain calls and texts sent using an automatic telephone dialing system or made using a prerecorded or artificial voice.  If a robocall or robotext includes or introduces an advertisement or constitutes telemarketing, the prior express consent must be writing.  The new rule is intended to close the “lead generator loophole” that has resulted in consumers receiving calls and texts from multiple businesses based on a single grant of consent.  The new rule amends the definition of “prior express consent” in the TCPA rules (47 C.F.R. Sec. 64.1200(f)) to provide:

The term prior express written consent means an agreement, in writing, that bears the signature of the person called that clearly and conspicuously authorizes no more than one identified seller to deliver or cause to be delivered the person called advertisements or telemarketing messages using an automatic telephone dialing system or made using an artificial or prerecorded voice.  Calls must be logically and topically associated with the interaction that prompted the consent and the agreement must identify the telephone number to which the signatory authorizes such advertisements or telemarking messages to be delivered.  (New language highlighted.)

In addition to the requirement for one-to-one consent, the new rule requires the consent to come after a clear and conspicuous disclosure to the consumer that he or she will receive robotexts and/or robocalls from the seller.  It also requires robotexts and robocalls that result from consumer consent obtained on comparison shopping websites to be logically and topically related to that website.  In its Report and Order, the FCC states, by way of example, that “a consumer giving consent on a car loan comparison shopping website does not consent to get robotexts or robocalls about loan consolidation.”

Do-Not-Call.  The new rule also amends the National Do-Not-Call Registry regulations (47 C.F.R.  Sec. 64.1200(e )) to explicitly state that DNC protections apply to text messaging, such that marketing text messages cannot be sent to numbers on the registry.

Call Blocking.  The new rule also amends the FCC common carrier regulations (47 C.F.R.  Sec. 64.1200(s)) to require terminating mobile wireless providers to block all texts from a particular number or numbers when notified by the FCC’s Enforcement Bureau of suspected illegal texts from that nobler or numbers, unless a provider’s investigation shows the identified texts are legal.

In the Report and Order, the FCC also:

• Encourages providers to make email to text an opt-in service.  The FCC has also issued a proposal to require providers to obtain consumer opt-ins for texts originating from email addresses. 
• Clarifies that the texter or caller has the burden to prove they have consent that satisfies the TCPA and FCC rules.
• Clarifies that consumer consent to a seller is not transferrable or subject to sale to another seller.

The amendments to the TCPA consent requirement will not be effective until six months after the FCC’s Report and Order is published in the Federal Register.  The Report and Order is otherwise effective 30 days after its publication in the Federal Register.