As our readers know, a recent federal court decision left the fate of the Federal Communications Commission's ("FCC") one-to-one consent rule under the Telephone Consumer Protection Act ("TCPA") on life support, at best. While prior rules of the road remain in place for TCPA compliance, Medicare marketing rules went into effect which are substantially similar to those that the FCC sought to implement. Below, we discuss the current landscape of TCPA and Medicare marketing compliance.
TCPA and Medicare Marketing Compliance
Codified at 47 U.S.C. § 227, the TCPA is a federal statute designed to protect consumers from the receipt of certain unsolicited telemarketing calls and text messages. Congress gave the FCC the authority to prescribe regulations to implement the TCPA. Since the TCPA's enactment in 1991, the FCC has wielded that authority to both interpret the statute and issue TCPA-related rulemakings in an effort to restrict certain telemarketing practices. For example, in 2012, the FCC declared that "prior express consent" meant that telemarketers needed "prior express written consent" before calling consumers. To further restrict the meaning of "prior express consent" for telemarketing calls, our readership is aware that the FCC attempted to impose a one-to-one consent rule and a "logically and topically associated" requirement. As noted above, these two restrictions are likely dead (unless Congress decides to revise the statute). Over the years, the FCC's rulemaking authority, coupled with its interpretation and guidance for complying with the TCPA, often has forced telemarketers to make wholesale changes to their practices for obtaining TCPA-compliant consent.
Following the FCC's lead, on October 1, 2024, the Centers for Medicare and Medicaid Services ("CMS") implemented Medicare marketing rules which require marketers to obtain one-to-one consent for telemarketing (and other marketing-related purposes). Unlike the FCC's rules, which only pertained to automated telephone dialing equipment, and the use of artificial or prerecorded voice, the Medicare marketing rule applies to manually dialed calls as well. Using hyperlinks that contain a list of marketing partners does not comply with Medicare marketing rules. In addition, like the FCC sought to do, Medicare marketing rules require that communications sent to consumers be "logically and topically associated" with the website on which the consumer's consent is obtained. Medicare's one-to-one consent rules also extend to the sharing of consumer data with third parties – personal beneficiary data collected for Medicare marketing to a consumer may only be shared with another marketer if the marketer receiving the consumer's data also has prior express written consent from the subject consumer.
Heightened Marketing Scrutiny Requires Experienced Attorneys
Complying with constantly evolving TCPA and Medicare marketing rules, and the vast patchwork of other various federal and state regulations, is incredibly difficult, and one misstep may lead to devastating consequences. With marketers under more scrutiny than ever, it is imperative that companies hire attorneys who are experienced with marketing law compliance. The attorneys at Klein Moynihan Turco ("KMT") have a wealth of experience with advising companies on how to comply with various federal and state marketing laws, rules, and regulations.
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