Businesses can seek to maximize the scalability of the Internet, as well as other available marketing vehicles, by partnering with third parties to conduct telemarketing and lead-generation campaigns on their behalf. By utilizing third-party marketers in such a fashion, a business can greatly expand its ability to reach prospective new customers.
However, the laws governing telemarketing require specific, unambiguous consumer consent in order for one party (such as a lead generator) to share that consumer's phone number with a third party (e.g., an advertiser) for telemarketing purposes, including text messaging. Therefore, lead generators must obtain each consumer's consent to be contacted by the business on whose behalf it is collecting the lead.
Consumer Consent to Share Telephone Numbers and the TCPA
Under the Telephone Consumer Protection Act (the "TCPA"), telemarketers must obtain separate, standalone "prior express written consent" when making telemarketing calls to a mobile phone using an "autodialer." Such consent is also required when making telemarketing calls to mobile or landline phones using pre-recorded messages. A recent declaratory ruling from the Federal Communications Commission (the "FCC") establishes such an inclusive definition of "autodialer" that almost all forms of telemarketing are considered conducted via an autodialer, and would thus require consumers' prior express written consent as set forth in the TCPA and applicable regulations.
Whether obtaining prior express written consent via an online form, a signed written document or over the phone, for consumer consent to be considered valid under the TCPA, it must be unambiguous, meaning that the consumer must receive a "clear and conspicuous disclosure" that he or she will receive future calls/texts that deliver autodialer and/or prerecorded telemarketing messages on behalf of a specific advertiser.
Thus, for example, whether a third-party marketer is generating leads on behalf of a business that intends to making telemarketing calls to those leads, the marketer must obtain each consumer's consent to be contacted specifically at that telephone number by that business by using language on the applicable web forms ("Submit button" language) or other acceptable written material that lists the business' full legal name, or a registered trade name or d/b/a of that business.
Lead generators may be able to sell a given consumer lead to multiple advertisers for telemarketing purposes, but only where each such advertiser is listed by full legal name or registered d/b/a in the applicable TCPA consent language.
Below is an example of "Submit button" language that a lead generator could use to satisfy the TCPA's standard for obtaining consent for a consumer to be contacted by multiple advertisers:
|I hereby consent to receive autodialed and/or pre-recorded telemarketing calls, as well as SMS text messages, from or on behalf of [FULL LEGAL NAME OF ADVERTISER 1], [FULL LEGAL NAME OF ADVERTISER 2] and [FULL LEGAL NAME OF ADVERTISER 3] at the telephone number provided above.1 I understand that consent is not a condition of purchase.
In addition to obtaining consumer consent via an online form, a signed written document or over the phone, third-party marketers must ensure that their Privacy Policies contain adequate disclosures concerning the fact that, with the consumer's consent, the marketer intends to share the consumers' telephone numbers for telemarketing purposes.
1. The checkbox and phone number should not be pre-populated, and the consumer's phone number should appear on the same page as the consent.