ONE-TO-ONE CONSENT MAY BE COMING BACK!!: Bi-Partisan House Bill Would Restore the Terrible Rule That Nearly Broke Lead Generation– Here’s What To Know

LCOC V ticket prices as I post: $249.00 (and rising)

So our new associate Jenny (from the block) Monnar posted about this yesterday but I don’t think ya’ll really picked up what she was putting down. So I will give this is a shot.

One-to-one consent may be coming back!

*insert record scratch here*

And, of course, this horrible development is brought to you by the NCLC and the clueless #biglaw defense firms that help fund them through cy pres designations in TCPA class action settlements.

But we’ll get to all of that.

First the headline: The BIPARTISAN “Stop Spam Calls Act” his the house floor last month and is specifically designed to bring back the FCC’s failed one-to-one consent rule.

You will ALL recall the splendid horror that was one-to-one. Puja and I crisscrossing the nation to meet with the FCC as the effective hour arrived–earning a stay of the rule only to have the Eleventh Circuit strike it down 20 minutes later.

It was a truly remarkable time in the lives of every member of the lead generation industry and for small businesses across the nation. And in the end– sanity won out.

But sanity is not the province of Congress and at least two mislead young representatives are proposing bringing back the worst rule on the internet.

The “Stop Spam Calls Act” reads in opaque fashion so you have to piece this together to make sense of it (but I will do it for you):

“…the Federal Communications Commission shall revise section 64.1200(f)(9) of title 47,  Code of Federal Regulations (or any successor to such regulation) to have such section read as such section appears (as revised) in the final rule of the Commission titled ‘‘Targeting and Eliminating Unlawful Text Messages, Implementation of the Telephone Consumer Protection Act 6 of 1991, Advanced Methods To Target and Eliminate Unlawful Robocalls’’ and published on January 26, 2024…”

And what did the rule look like on January 26, 2024?

You guessed it. The one-to-one consent rule:

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.

Egads.

So a couple of members of Congress (Suhas Subramanyam (D. VA-10) and Jefferson Shreve (R. IN-06)) want to restore the rule the Eleventh Circuit killed.

Why?

Well because the NCLC convinced them to do it, of course.

The National Consumer Law Center issued a statement supporting the bill reading: “Online shopping shouldn’t mean endless spam robocalls from thousands of companies you’ve never even heard of… The Stop Spam Calls Act would restore FCC rules that checked these abuses and limit intrusive robocalls.”

Sigh.

For the newly initiated the NCLC is the lobbying wing of the plaintiff’s bar (that’s not what they call themselves of course, the claim to represent poor consumers) and it is constantly trying to broaden the TCPA to make it easier for the plaintiff’s lawyers to file suits against small (and large) businesses. Booo.

But hapless #Biglaw attorneys keep helping them do it through a vicious cycle:

1. They are retained to defend TCPA cases for some reason;
2. They lose said cases;
3. They advise their clients to settle them for millions (or tens of millions) of dollars;
4. They designate the NCLC as cy pres in these settlements– secretly funneling hundreds of thousands of dollars (or more) into the NCLC’s pockets; and
5. NCLC uses its witch-like powers to convince Congress or the FCC to make bad policy expanding the TCPA to create more lawsuits.

Absolute trash.

Luckily the NCLC can’t get out of its own way. They’re good at convincing lawmakers to do stuff but the stuff they do is pretty dumb.

For instance, crafting a bill requiring the FCC to update the CFR makes little sense in an era when courts are free to disregard the CFR in favor of the plain language of the TCPA– and the Fifth Circuit Court of Appeals as already held the FCC’s entire PEWC regime (one to one or not) is not effective.

Far smarter ways to achieve the result they’re seeking. Let’s hope they don’t figure that out though.

More info on the bill here.

In the meantime if you’re in the lead generation game you MUST attend Law Conference of Champions V next July. Best networking with the most compliant brands and partners in the game. Tickets are just $249.00 as I type but they rise every day at 10 am pacific– so BUY NOW!

Chat soon.