The worlds of telemarketing and lead generation will see significant change next month. Industry change of this magnitude was last seen in October of 2013, when the Telephone Consumer Protection Act ("TCPA") was amended to require "prior express written consent" to deliver certain telemarketing calls to consumers. Enter TCPA One-to-One Consent.
On January 27, 2025, the TCPA will require that consent to call/text consumers via automated means must be obtained one "seller" at a time. This means that the use of "marketing partner" links in TCPA consent language, as well as the inclusion of more than one seller in TCPA consent language, will no longer be acceptable under the law. In announcing this change, the Federal Communications Commission ("FCC") explained that it was endeavoring to close the "lead generation loophole" that, for years (according to the FCC), resulted in consumers receiving countless calls/texts from marketers peddling products and services that they had indicated that they were interested in and, often, those that they were not.
To further restrict industry, not only will consent need to be obtained on a 1-to-1 basis, but calls/texts must also be "logically and topically related" to the media channel on/through which consent was obtained. For example, if the consumer provided Company A consent to call/text via automated means on a website that markets widgets, Company A should only call/text the consumer concerning widgets and not unrelated products such as personal computers.
Without getting more detailed, telemarketers, advertisers, lead generators and, well, pretty much any company that does business in the United States needs to get ready for January 27, 2025, immediately, or risk significant TCPA liability ($500-$1,500 per call/text).
One-to-One Consent Preparatory Measures
What are some of the things that need to be done in advance of the One-to-One Consent effective date?
1) Preparation of new TCPA 1-to-1 consent language (which has to be written with very specific information and nothing more);
2) Correct placement of the TCPA One-to-One consent language on webpages where consent will be obtained;
3) Implementation of new comprehensive recordkeeping requirements;
4) Updating of all lead buy agreements, lead sale agreements, affiliate agreements, advertiser agreements, etc.; and
5) Updating of telemarketing scripts in which TCPA consent will be collected.
Please note that the foregoing list is not exhaustive and merely highlights some of the measures that must be implemented before the FCC's One-to-One Consent Rules become effective.
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