On March 16, 2023, the Federal Communications Commission ("FCC") issued a Report and Order and Further Notice of Proposed Rulemaking ("FNPR") addressing a variety of issues under the Telephone Consumer Protection Act ("TCPA"). As our readership is aware, the TCPA is a federal statute designed to protect consumer privacy by restricting certain types of telemarketing communications. The FCC regularly issues rulemakings on issues that they deem pressing. Regarding the issue of TCPA consent, in the FNPR, the FCC proposed "ban[ning] 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" – a practice the FCC characterizes as a "loophole." On June 6, 2023, a contingent of 28 attorneys general ("AGs") submitted Reply Comments ("Comments") in response to the FNPR. Almost the entirety of the 22-page AG submission addresses the propriety of obtaining consumer TCPA consent for telemarketing by multiple marketers on one webpage via hyperlinked marketing partner lists. In the past, attorneys general from various states have voiced their concerns regarding the industry's use of such hyperlinked marketing partner lists. Telemarketing companies engaged in this practice should take heed: the focus of the Comments clearly indicates that singular consumer consent remains one of the AGs' top priorities when it comes to TCPA compliance.
Why Are TCPA Provisions Regarding Consent Deemed Problematic?
In its FNPR, the FCC asked for commentary on an example website that sought consumer consent for the receipt of calls and texts from insurance companies and other "partner companies." A hyperlink on the website led to the complete marketing partner companies list. This list included both insurance companies and other entities that did not appear to the FCC to be related to insurance.
The AGs' Comments clarified that the hyperlink to the partners list was embedded in the website's consent language. This is a practice employed by many in the industry; and consumers assenting to this language is generally deemed valid proof of consent under the TCPA and judicial interpretation thereof. Attached to the Comments was the partners list, which included over 2,100 companies. In their letter to the FCC, the AGs state that this practice is commonly employed in an effort to skirt the TCPA's provisions regarding consent, allowing website operators to then sell consumer data to intermediary aggregators and/or end-user marketing companies. Essentially, the AGs maintain that the industry practice of utilizing marketing partner lists results in consumers unwittingly receiving illegal robocalls and text messages from multiple entities offering services unrelated to their original inquiries.
The AGs' Proposed Changes to TCPA Consent
The AGs contend that operators of websites that employ marketing partner lists are already in violation of the TCPA in its current form. The AGs cite to the TCPA, which provides in relevant part:
(i) The written agreement shall include a clear and conspicuous disclosure informing the person signing that:
(A) By executing the agreement, such person authorizes the seller to deliver or cause to be delivered to the signatory telemarketing calls using an automatic telephone dialing system or an artificial or prerecorded voice.
This language, according to the AGs, indicates that the FCC already intended for TCPA consent to only be valid where it is obtained directly from a specific consumer by a specific seller. To fulfill this intent, the Comments suggest that websites clearly list each individual marketing partner and require the consumer to separately consent to telemarketing communications from each of them. Whatever remedy the FCC may deem appropriate, the AGs urge that it "shut down these unreliable and illegal methods of purportedly obtaining consent." To that end, the AGs recommend that the FCC issue an Order clarifying that "prior express written consent," the operative phrase under the TCPA, only contemplates consent between one specific consumer and one specific seller.
Why are the Comments Relevant to your Business?
To be clear, the Comments merely serve as the respective opinion of 28 AGs insofar as how they want the FCC to craft their TCPA rulemaking. However, the FCC has invited commentary on an issue that it identifies as a "loophole." Because of this fact, our readers should readily anticipate that the FCC will attempt to close this loophole in some fashion. Whether the FCC chooses to amend the language of the TCPA itself or issue a clarifying Order remains to be seen. Against this backdrop, telemarketing companies that utilize marketing partners lists should consult with legal counsel in anticipation of the FCC's rulemaking.
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