Sigh.
I hate being right all the time.
I warned everyone back in March that the FCC had buried the lead with the new NPRM.
ANOTHER CAN’T MISS WEBINAR ON THAT CRITICAL NPRM STARTS SOON!
While everyone else was focused on the “logically and topically” related standard I SCREAMED AT THE TOP OF MY LUNGS that the key language in the NPRM was that related to consent being sent directly to one seller at a time.
Very very few listened to me.
And wouldn’t you know it–I was right and they were ALL WRONG.
Shocker.
Today the FCC staff circulated its proposed rule closing the lead generator loophole. And it is absolutely devastating for industry–we’ll get to that.
But the entire ruling was brought to you by the one liner that I WARNED YOU ABOUT. See n. 3 In the Further Notice of Proposed Rulemaking, we sought comment on a proposal that for TCPA consent “prior express written consent to receive calls or texts must be made directly to one entity at a time.”
Folks didn’t want to listen to the Czar. I begged. I pleaded. I screamed. I whispered.
But in the end, it was R.E.A.C.H. and the Czar fighting against a forgone conclusion. As I told everyone, the combined forces of the NCLC, EPIC, Public Knowledge, 12 Democratic Senators and 28 AGs was more than one lawyer–even a lawyer of great power and ability–could fight back against. I needed everyone to help. And in the end, it didn’t happen.
And so today, you can all read and know that all I prophesied has come to pass.
Be sure to punish all of those who counseled I was wrong. Make sure to tell them. Directly. That they cost you your business.
But hopefully from this disaster we can all rebuild and next time the Czar warns of calamity… you will listen.
So What the H*ll Just Happened?
In a new rule–which has not yet been adopted but will be at the December Open Meeting–the Commission has “closed the lead generator loophole” by mandating that consent must be obtained on behalf of ONLY one seller at a time.
The ruling states:
We now make it unequivocally clear that texters and callers must obtain a consumer’s prior express written consent from a single seller at a time on the comparison shopping websites that often are the source of lead generation, thus closing the lead generator loophole.
Requiring one-to-one consent will end the current practice of consumers receiving robocalls and robotexts from tens, or hundreds, of sellers – numbers that most reasonable consumers would not expect to receive.
The lead generation industry brought this day of reckoning on itself–and not just by failing to heed the Czar’s warnings- but also through years of abusing consumers, as the Commission found:
Lead-generated communications are a large percentage of unwanted calls and texts and often rely on flimsy claims of consent to bombard consumers with unwanted robocalls and robotexts.
The Commission leaves a bit of room for lead generator to allow consumers to provide multiple seller consents in one page, but they must be individually selected:
We require consent to one seller at a time, but this requirement does not specify how many sellers can be listed on the web page; if the web page seeks to obtain prior express written consent from multiple sellers, the webpage must obtain express consent separately for each seller. In addition, other sellers can be included on the web page for reasons other than obtaining consent, e.g., for contact that does not require TCPA prior express written consent, or with information allowing the consumer to contact the seller directly.
The Commission also requires logical and topical relationship with the website:
[R]obotexts and robocalls that result from consumer consent obtained on comparison shopping websites must be logically and topically related to that website. Thus, for example, a consumer giving consent on a car loan comparison shopping website does not consent to get robotexts or robocalls about loan consolidation.
In terms of how the new lead generation world might look, the FCC offers the following suggestions:
Websites, including comparison shopping websites, can use a variety of means for collecting one-to-one consent for multiple sellers to comply with our rule. For instance, the website may offer a consumer a check box list that allows the consumer to specifically choose each individual seller that they wish to hear from.
Alternatively, the comparison shopping website may offer the consumer a clickthrough link to a specific business so that the business itself may gather express written consent from the consumer directly.
After rejecting concerns that these changes will shutter small business, the Commission gives a six month window for businesses to comply:
[W]e nonetheless give texters and callers, and any third party websites they obtain consent through, a six-month implementation period to make the necessary changes to ensure consent complies with our new requirement. This implementation period should provide both lead generators and the callers that rely on the leads they generate ample time to implement our new requirements.
You can read the entire ruling here: https://docs.fcc.gov/public/attachments/DOC-398661A1.pdf
So what happens next?
The FCC will vote on the rule at the next open meeting on December 13, 2023.
After that the rule will be published in the federal registrar likely sometime in February and go into effect sometime in August, 2024.
How can you learn more?
I will provide more coverage on this MASSIVE MASSIVE MASSIVE MASSIVE ruling next week, but I will not provide any webinar coverage on this and the FIRST time I will speak on the subject will be at the TCPA Summit on December 4-5, 2023. (Yes, those guys just doubled their attendance–hahahaha.)
Sign up NOW to make sure you catch the Czar’s FIRST AND DEFINITIVE break down of the new rule and what it means for your business.
Remember, I was the ONLY guy who saw this coming–so many people said I was wrong, and make sure you don’t forget (or forgive) that–and you want to hear from the Czar and ONLY from the Czar on this. Too important to try trust anyone else.
So be sure to attend the Summit.
If you can’t get there, we will be at Lead Generation World in January–back on the Troutman Amin, LLP stage!!!
More to come.