The Federal Communications Commission has published its new rule designed, in part, to close the lead generator loophole by amending the definition of “prior express written consent” for purposes of the Telephone Consumer Protection Act.

Lead generators take note. With the exception of provisions relating to combating robotext sources such as text message blocking, the effective date of the new rule will be March 2024, with a January 2025 effective date for the new requirement that lead generators obtain consumer consent to receive calls using regulated technologies one seller at a time – rather than have a
single consent apply to multiple telemarketers at once.

Moreover, “calls 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.” Thus, for example, a consumer
giving consent on a mortgage loan comparison website would not be deemed to have provided consent to receive robotexts or robocalls about auto insurance.

New FCC Ruling Regarding Revocation of Prior Express Consent

The Telephone Consumer Protection Act restricts robocalls and robotexts absent the prior express consent of the called party or a recognized exemption. Over many years, the Federal Communications Commission has made clear that consumers have a right to decide which robocalls and robotexts they wish to receive by exercising their ability to grant or revoke consent to receive such calls and texts.

In a January 25, 2024 Report and Order and Further Notice of Proposed Rulemaking, the FCC announced the adoption of new rules to strengthen the ability of consumers to decide which robocalls and robotexts they wish to receive, codify the Commission’s past guidance on consent to make these requirements easily accessible and apparent to callers and consumers, and propose to close loopholes that allow wireless providers to make robocalls and robotexts without the ability for the subscriber to opt out.

So, what would the Order do?

In part and without limitation, it would codify the Commission’s 2015 ruling that consumers can revoke consent under the TCPA through any reasonable means while providing additional clarification on what “reasonable” means in this context. Additionally, it would require that robocallers and robotexters honor do-not-call and consent revocation requests as soon as practicable, and no longer than 10 business days from receipt. It would also codify the Commission’s 2012 ruling which clarified that a one-time text message confirming a consumer’s request that no further text messages be sent does not violate the TCPA as long as the confirmation text merely confirms the called party’s opt-out request and does not include any marketing information.

The Further Notice would, without limitation, propose and seek comment on clarifying that the TCPA applies to robocalls and robotexts from wireless providers to their own subscribers and for the first time propose to give such consumers the ability to stop these communications, if they wish, by revoking consent.