Confused About the FCC’s New One-to-One Consent Rules– You’re Not Alone. Here Are Some FAQs Answered For YOU!

Big webinar on FCC one-to-one consent Tuesday June 18, 2024!!! Don’t miss it!

So we had the big R.E.A.C.H. monthly member call on Friday. Tons of participation. It went really well.

Heard a lot about what folks are concerned about in the industry. Still seems to be a lot of confusion about it. So let me help with some answers to critical questions.

None of this is legal advice. Absolutely critical you hire a lawyer–AND A GOOD ONE–to assist you here. But this should help orient.

What is the new FCC One-to-One Ruling?

The FCC’s one-to-one ruling is a new federal regulation that alters the TCPA’s express written consent definition in a manner that requires consumers to select each “seller”–that is the ultimate good or service provider–the consumer chooses to receive calls from individually.

The ruling also limits the scope of consent to matters “logically and topically” related to the transaction that lead to consent.

Under the TCPA express written consent is required for any call that is made using regulated technology, which includes autodialers (ATDS), prerecorded or artificial voice calls, AI voice calls, and any form of outbound IVR or voicemail technology (including ringless) using prerecorded or artifical voice messages.

Why Does the FCC’s New One-to-One Ruling Matter?

Currently online webforms and comparison shopping websites are used to generate “leads” for direct to consumer marketers, insurance agents, real estate agents, and product sellers in numerous verticals.

Millions of leads a month are sold by tens of thousands of lead generation websites, leading to hundreds of millions of regulated marketing calls by businesses that rely on these websites to provide “leads”–consumers interested in hearing about their goods or services.

Prior to the new one-to-one ruling website operators were free to include partner pages that linked thousands of companies the consumer might be providing consent to receive calls from. And fine-print disclosures might allow a consumer to receive calls from business selling products unrelated to the consumer’s request. (For instance a website offering information about a home for sale might include fine print allowing the consumer’s data to be sold to a mortgage lender or insurance broker to receive calls.)

The new one-to-one rule stop these practices and requires website operators to specifically identify each good or service provider that might be contacting the consumer and requires the consumer to select each such provider on a one by one basis in order for consent to be valid.

Will the FCC’s One-to-One Ruling Impact Me?

If you are buying or selling leads, YES this ruling will effect you.

If you are a BPO or call center that relies on leads– YES this ruling will effect you.

If you are a CPaaS or communication platform–YES this ruling will effect you.

If you are a telecom carrier–YES this ruling will effect you.

If you are lead gen platform or service provider–YES this ruling will effect you.

If you generate first-party leads–YEs this ruling will effect you.

When Does the Rule Go Into Effect?

The ruling applies to all calls made in reliance on leads beginning January 27, 2025.

However, the ruling applies regardless of the date the lead was generated. So compliance efforts need to begin early so as to assure a pipeline of available leads to contact on that date.

In other words, all leads NOT in compliance with the FCC’s one-to-one rule CANNOT be called beginning January 27, 2025.

What Do I have to Do to Comply?

Three things:

i) Comply with the rather complex, but navigable new one-to-one rule paradigm. (The Troutman Amin Fifteen is a handy checklist to assist you);

ii) Assure the lead is being captured in a manner that is “logically and topically” related to the calls that will be placed; and

iii) Assure the caller has possession of the consent record before the call is made.

These are the three core requirements, but there are a lot of nuances to it. Again– GET A LAWYER. Do NOT just rely on this blog! 🙂

Can I Avoid the Ruling by Dialing Manually?

Yes and no.

Technically this rule ONLY applies to the definition of express written consent, which ONLY applies to calls made using regulated technology for marketing purposes.

So YES you can rely on old leads IF you are dialing “manually” with a couple of caveats:

i) The definition of what sorts of autodialers are covered by the TCPA is incredibly complex and shifting. You should definitely consider using human selection vendors–such as Safe Select or Drips’ Initiate platform–rather than assuming your click-to-dial process is sufficient. (Again, get a lawyer!);

ii) There is some (relatively minor in my view) risk that the one to one rule also applies to numbers on the DNC list, even if dialed manually. I do not believe this is the law but some powerful forces ae advocating otherwise and this issue will be tested in court. That creates another level of risk for those hoping to avoid one-to-one by dialing manually. (Of course you could always just scrub out DNC numbers from your campaign.);

iii) There are also state laws–such as those in Connecticut–that will prevent calls made without PEWC, even if they are permitted at the federal law. (Have I mentioned you should get a lawyer to help you?) 🙂

What Does “topically and logically related” Mean?

Nobody knows for sure.

The examples the Commission uses in framing the rule are pretty extreme–offering car insurance to someone who just wanted a mortgage rate– but there is good reason to believe the rule will limit any sort of cross-sharing of consents across subsidiaries or for different product types, even within the same vertical.

Best to be conservative here until the courts have had a chance to define this phrase. For instance, if a consumer applies for a mortgage it is probably best not to offer the consumer ancillary products–even if they are finance related–unless they directly relate to the mortgage transaction.

What Does it Mean that a Caller Must Have Possession of the Consent Form Before the Call is Made?

This is one of the most overlooked portions of the new FCC one-to-one ruling and may ultimately be one of the most impactful.

Per the new rule callers CANNOT rely on third-party lead generators to possess consent records and callers must obtain the full record BEFORE making any call to the consumer.

NEW RECORD-KEEPING REQUIREMENTS?: Why an Overlooked Portion of the FCC’s New Ruling May Be Among its Most Impactful

What needs to be possessed by the caller is unclear. Some sort of record that clearly demonstrates one-to-one consent was obtained is needed, however. It is very likely–although courts have not yet confirmed–that a record from ActiveProspect or Jornaya WILL be sufficient. Other data sets might also be permissible.

But a single line of API data or a mere third-party token is likely NOT sufficient under the new rules.

What Happens if I Fail to Comply With the New Rule?

Any caller using regulated technology for marketing purposes without compliance with the FCC’s new one to one rule faces massive risk of the following sort:

1. TCPA class action risk: Minimum of $500.00 per call, up to $1,500.00 per call. The damages are NOT limited to the call made to a single consumer and might include EVERY CALL made by a caller that violates the rule in a single case. Depending on volumes, therefore, these cases may seek hundreds of millions or even billions of dollars in damages. They can be brought by any consumer that received even one violative call, most anywhere in the nation. And Plaintiff’s lawyers are NOT just looking for the “bad guys”–they will sue any company that is out of compliance.
2. Regulator risk: Although less likely than being sued in TCPA class action, regulators carry even heavier fines– up to $16k per violation. while regulators generally only go after the real “bad guys” they come looking to put people out of business. Recent fines from the FCC have been over nine figures, and they often pursue company operators personally.

In other words, the stakes here are incredibly high. Non-compliance is simply not an option.

Can I List My Company’s Name on the Form and Call And Make Offers Orally?

No. Under the rules the “seller”–that is the ultimate good or service provider–must be the name on the form accepted by the consumer.

A lead generator CANNOT just list their own name on the form, call the consumer, and then make oral offers for third-parties.

This is NOT legal.

It IS, however, possible for the lead generator to offer their own services–likely as a broker–to assist the consumer to find services offered by others BUT that will require OBJECTIVE rationale in the CONSUMERS BEST INTEREST (you cannot just sell to highest bidder.) PLUS the consumer must sign on and agree to the service BEFORE offers are made. AND in many states/verticals broker licenses will be required along with heightened regulatory scrutiny. (Have I mentioned you should have a lawyer help you with this yet?)

Wait So I am NOT the “Seller” under the FCC One-To-One Rule Even Though I Am Selling Leads?

CORRECT.

This is highly confusing, I know.

In the lead gen industry “sellers” refers to lead seller– but under the FCC one-to-one rule the ultimate “buyer” of the lead is actually the “seller.”

Again, it is the ultimate good or service provider that is the “seller” under the FCC’s one-to-one rule.

Wait So I am NOT the “Seller” under the FCC One-To-One Rule Even Though I Am Selling a Good or Service?

CORRECT.

Ironically, you are not the “seller” even if you are the agency SELLING a product. For instance, an independent insurance agent selling insurance is still not the “seller.” The insurance carrier is.

Wild. I know.

Is a Lead Valid for an Independent Agent to Call if the Insurer/Carrier Name is on the Form? 

YES.

One of the oddest wrinkles of the one-to-one rule’s focus on “seller” is that if a consumer agrees to here from a brand–e.g. an insurer or carrier–EVERYONE authorized to call on behalf of that copay can likely buy that lead. That means independent agents authorized to sell a product do NOT need to be listed individually on a lead form.

(Again, get your own counsel on this–but that is the Czar’s take.)

Can I Obtain Express Written Consent Orally on Inbound Calls?

No.

CLARITY: Critical New TCPA Case Confirms Express Written Consent Cannot Be Obtained In A Recorded Phone Call Under E-SIGN–And I Told You So

Don’t ask again. 🙂

How Many “Sellers” can I list on the Form?

There is no clear answer.

Troutman Amin, LLP recommends no more than the consumer can see visually on a single frame of the website based upon the manner in which the consumer is viewing the page.

However the FCC did not specifically identify a limit and the courts will need to figure this out.

The good news is that you are NOT required to list only one seller on the page– BUT the consumer must select each seller individually, likely using check boxes.

Consider using the Troutman Amin Fifteen as a high-level compliance guide. (BUT GET YOUR OWN COUNSEL!)

Are There Vendor Solutions Out There to Assist?

Yes. Tons.

The R.E.A.C.H. tech committee is full of great vendors that can assist. Reach out to me and I can connect you with resources to assist.

Can These Rules Change Before they Go Into Effect?

Unfortunately, yes.

Much of what I have laid out above is not going to change, but some changes may occur. This is so because the FCC re-opened the comment window to analyze the effect of the rule on small business.

TCPAWorld.com will alert everyone ASAP once the changes come out.

Where Can I Get More Information About the FCC One-To-One Rule?

Luckily there are a tons of resources around this:

1. Follow TCPAWorld.com–we break all the developments around this daily– and be sure to check out our Lead Gen Resources page;
2. Follow Troutman Amin, LLPs YouTube channel— tons of helpful videos on the subject, with more to come;
3. Join R.E.A.C.H.— a fantastic trade organization of COMPLIANT companies within the lead generation industry with TONS of great resources available;
4. Attend a conference where Troutman Amin, LLP lawyers are speaking to gather the latest information in real time. The next AND BIGGEST such event is the Law Conference of Champions on July 15, 2024;
5. Follow the FCC and FTC’s websites; and
6. GET EXPERIENCED COUNSEL WHO CAN ASSIST YOU. Troutman Amin, LLP is still taking on clients, but we are not the only lawyers out there (probably the best though.) 🙂

Hope this was helpful. Share if so.

Much love.