So massively successful webinar yesterday with evocalize CEO Mathew Marx on the FCC’s new one-to-one rule.
Unbelievable attendance and engagement.
If you missed this webinar I’m sorry but you can watch it now on our renowned YouTube channel!!!
Received a bunch of thoughts and questions afterward. And a recurring theme seems to be confusion over whose name actually needs to be on the form.
At the center of the “debate” is that folks really want to be able to list their own agency/brokerage/lead gen on a form and get consumer consent to call them to offer the consumer products or services provided by other companies. But that is NOT the way the one-to-one rule is set up to work at its core.
And I understand–the purpose of the rule is to limit calls to consumers to a single entity. But that is not what the words of the rule say. And in the law we are bound by the words first and the purpose second (and only if the words are unclear.)
So here is what the new rule actually says (effective January 27, 2025):
(9) The term prior express written consent means an agreement, in writing, that bears the signature of the person called or texted that clearly and conspicuously authorizes no more than one identified seller to deliver or cause to be delivered to the person called or texted advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice. Calls and texts must be logically and topically associated with the interaction that prompted the consent and the agreement must identify the telephone number to which the signatory authorizes such advertisements or telemarketing messages to be delivered.
That word “seller” is key because it defines who must be named on the form.
Seller is defined elsewhere in the CFR as: “the person or entity on whose behalf a telephone call or message is initiated for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.”
A telemarketer, on the other hand, is defined in the CFR as: “the person or entity that initiates a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.”
So under the CFR, the broker or agent selling insurance would be viewed as a telemarketer whereas the insurer providing the coverage is the seller. The calls are made on behalf of the ultimate service (seller) provider by the telemarketer.
It is conceivable some court finds that anyone down the chain can become a “seller” automatically by virtue of having someone higher up the chain serve as the “telemarketer.” But in such a view the term “seller” doesn’t have a set definition in the abstract but only in context and courts are loathe to apply such sliding application to words. Fixed definitions are preferred. And the fix here is anchored to the good or service being sold to the consumer–which makes the good or service provider the ultimate seller.
As I explained in the webinar, however, an agency/broker CAN list their own name on a form (or buy a lead with their name listed) where the service being offered to the consumer is the brokerage/buying/finding assistance of the agency/broker. If the consumer wants to hear about that then obviously the “seller” is now the broker/agent and not the insurer– the consumer wants help finding the right insurance, not insurance itself in that instance. Of course this needs to be crystal clear in the applicable call to action–not from a logically and topically related standpoint (which I consider a lower threshold) but from a defining consumer expectation to assess the identity of the “Seller” perspective.
Now as evocalize CEO Mathew Marx said of this discussion–this is “jedi-level stuff.” And indeed it is not for the faint of heart. A misstep here means nearly endless TCPA exposure. And since the consumer must individually select a single “seller” at a time companies are going to have to place their bets on how they want to draft their forms– they can’t just list the agency and the insurer to cover their bases (unless the consumer selects both, but even then you are limited to the specific insurers the consumer selected.)
Regardless you will DEFINITELY want to consult a lawyer to help you with this. Really really tricky.
Obviously none of this is what the FCC actually intended to do–which is why I think this is so hard for folks to conceptualize, much less implement.
R.E.A.C.H. submitted a “beautiful” comment to the Commission addressing exactly this issue–and others–so we are still hopeful for a revision to the rule. A modification permitting a single identified “seller or telemarketer” to call the consumer would do nicely. As would the even easier-to-live-with word “entity”–which is what R.E.A.C.H. requested.
It remains to be seen if the FCC modifies its current tricky language–but we are all stuck with it until a modification is actually made, and it may not be.
If you’re reading this and haven’t joined R.E.A.C.H. yet, what gives?
The R.E.A.C.H. standards (V. 2.0) will be out August 5, 2024 and you can expect much helpful guidance there as you all plan your go to market strategy for the new forms.
I will say this– there is a huge (multi-billion dollar) opportunity for lead suppliers who get their one-to-one leads to market first. Buyers want these leads NOW because they want a pipeline they can call after January, 2025. And the stickiness of being the first quality supplier to meet a buyer’s needs transcends market share and creates loyalty and trust that is really powerful. I’d imagine early adopters of the one-to-one rule here are going to make a killing.
Anyway, looking forward to seeing everyone at LCOC next month. Going to be awesome!
And it looks like the venue is going to rearrange the room to get more folks in so we are likely to put tickets back up for sale on July 1, 2024. So be on the look out. For now virtual option tickets are available and selling like hotcakes!
Chat soon.
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