*Update: On January 24, 2025, the FCC issued an order postponed the effective date of the one to one rule to January 26, 2026, or until, following a decision from the Eleventh Circuit a petition challenging the rule, the Commission issues a Public Notice specifying a sooner date.
In December 2023, the Federal Communications Commission (FCC) implemented new regulations to address the "lead generator loophole" in the Telephone Consumer Protection Act (TCPA), effective January 27, 2025*. These rules mandate that sellers, callers, and lead generators must obtain individual consent from consumers before contacting them, significantly altering how consent is acquired.
Key Takeaways
- Prior Express Written Consent (PEWC): The new rules require that consent must be obtained for each individual seller rather than through a single agreement covering multiple companies. The FCC has redefined PEWC to mean a written agreement that specifies one seller and ensures calls or texts are relevant to the consent given.
- Scope of Consent: The consent must be "logically and topically associated" with the service or product offered. This term is not defined in the new rule, creating risk for tele marketers seeking to avail themselves of this exception, especially at first.
- Compliance Adjustments: Lead generators and website operators will need to modify their platforms to secure individual consents for each seller if they are using any kind of automatic dialing system (ATDS) or artificial voice messages.
- Consent Workflow on Paper Consent and Web Forms: Websites can implement checkboxes allowing consumers to select multiple sellers for contact, thereby obtaining one-to-one consent efficiently.
- Proof of Consent: The burden of proof for retaining records and demonstrating valid consent lies with the caller or texter, and consent must come directly from the consumer and cannot be sold or transferred.
To align with the new regulations by the effective date*, telemarketers and sellers should:
- Update contracts to require one-to-one consent and ensure that lead generators being used are in compliance.
- Ensure lead generator vendor contracts include indemnification for breaches regarding consent.
- Review webforms to confirm compliance with the new consent requirements.
- Establish clear responsibilities for record-keeping between parties.
- Implement audits to ensure ongoing compliance with the new rules.
As most telemarketers know well, TCPA compliance risk extends far beyond FCC enforcement: those in violation (or possible violation) could find themselves subject to a class action lawsuit alleging millions of dollars in statutory damages.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
