For years, lead generators have obtained telephone numbers for their clients to call by obtaining the consumer's consent to receive calls from certain entities specifically identified by the lead generator. A typical model uses language that asks for the consumer's consent, via a checkbox or otherwise, to receive marketing calls from a few of the lead generator's marketing partners named in the consent request.
A popular variation of this model is to include, instead of a list of partners by name, a clickable reference to "marketing partners" in the consent language. The specific marketing partners are visible only when the consumer clicks the link and views whatever list of marketing partner names the lead generator has provided.
Sometimes, the marketing partners list has several dozens, hundreds, or thousands of names. With such long lists, one might ask: How many names on the marketing partners list is too many to evidence meaningful consent by the consumer to receive calls or texts? As recently declared by the Federal Communications Commission (FCC), the answer is 5,329. As a practical matter, the number might be a whole lot less.
FCC Urth Access, LLC Order
In December 2022, the FCC issued an Order to crack down on suspected illegal robocalls made by Urth Access, LLC and related entities responsible for making approximately 40% of all student loan robocalls to consumers in October 2022. The purpose of the Order was to put voice service providers on notice of the "Student Loan Robocall Operation" and have them block traffic from the Student Loan Robocall Operation.
According to the FCC, the Urth Access Student Loan Robocall Operation made prerecorded voice message calls without the consent of the called parties (and absent an emergency purpose), in violation of the Telephone Consumer Protection Act (TCPA). The FCC reasoned that the Student Loan Robocall Operation did not provide the requisite "clear and conspicuous disclosure" when obtaining express written consent required by the TCPA because the "marketing partners" link was only visible to the consumer if the consumer clicked a specific hyperlink to a second website containing the names of each of 5,329 entities.
The FCC concluded that "listing more than 5,000 'marketing partners' on a secondary website is not sufficient to demonstrate that the called parties consented to the calls from any one of these 'marketing partners.'"
How Should Lead Generators Proceed?
Consent to deliver telemarketing calls and text messages is always a tricky issue, and lead generators should discuss their consent language and mechanisms with competent counsel to help ensure compliance with consent requirements under the TCPA, the Federal Trade Commission's Telemarketing Sales Rule, and burgeoning state laws requiring consent. However, there are a few principles that might provide a useful starting point.
- First, setting consumers' expectations about whom they authorize to call or text them may help ward off complaints. Specifically listing a manageable number of identifiable companies within the text of the consent disclosure itself is likely to be more defensible than a hyperlinked list of marketing partners, especially when the marketing partners list is more than a few names.
- Second, ensure that those entities that call or text the consumer are offering the types of products or services the consumer expected to receive information about. In the Urth Access case, for example, the FCC noted that the lead generation websites from which the Student Loan Robocall Operation collected consumer telephone numbers ostensibly solicited leads for health insurance products or services, not student loans. Thus, consumers who signed up through those sites likely expected to receive calls about health care, not student loans. The practice of indiscriminately selling lead information to buyers regardless of whether the buyers' products or services matched the consumer's interest has long been a red flag for law enforcement.
- Third, the lead generator should have effective protocols in place to vet the compliance practices of its marketing practices, possibly setting limitations on how and when leads may be used or how many named buyers may use the leads. One key aspect of compliance monitoring is to ensure prompt termination of business relationships when a partner violates your policies or protocols or otherwise shows evidence of harming consumers. This step is usually financially difficult to take but important for the long-term success of your business.
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