FCC to reconsider its TCPA consent rules

In its March 2023 open meeting, the FCC issued a Further Notice of Proposed Rulemaking (FNPRM) that will reconsider its TCPA consent rules. This could have a big impact on how enterprises may contact customers and prospects using voice calls and text messages. Let’s have a look.

The topic appears in the FNPRM under the heading “Closing the Lead Generator Loophole.” Although the Report and Order and FNPRM are mostly to address Targeting and Eliminating Unlawful Text Messages, (CG Docket No. 21-402), this FNPRM item deals with Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 (CG Docket No. 02-278).

In paragraph 58 of the FNPRM, the Commission proposes “to ban the practice of obtaining a single consumer consent as grounds for delivering calls and text messages from multiple marketers on subjects beyond the scope of the original consent.”

What brought this up

Assurance IQ filed a petition before the Commission in May 2020 asking for clarification that a caller may rely on presumed consent from online forms for TCPA purposes. (They later sought to withdraw their petition in May 2022.)

Public Knowledge replied with an observation that lead generators and data brokers use hyperlinked lists of other entities (“partner companies”) on websites to harvest consumer telephone numbers and consent agreements. These leads and purported consent agreements are passed to telemarketers and scam callers.

The National Consumer Law Center replied with an example of an insurance company website that had 8,423 entities on a hyperlinked partner page.

Rules debate

Public Knowledge advocated for a rule that prior express consent to receive calls or text messages must be made directly to one entity at a time.

REACH argued that the Public Knowledge proposal threatens to shut down the lead generation and performance marketing industry entirely. They provided an example, AmeriLife, a company that obtains consent online and connects customers with insurers that can meet the consumers needs. REACH argues that, if consent must be provided directly to an insurer, then it would be extremely challenging for AmeriLife to stay in business. It would also be detrimental to consumers, who would lose access to helpful information in a single portal.

REACH advocates for a “middle ground” that would protect consumers from abuse and allow responsible intermediaries to offer comparison shopping with reasonable limits on the number of marketing partners and the duration of consent.

The comment period for this FNPRM will be announced with its publication in the Federal Register. It should be interesting to see how this debate unfolds.

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