In a flurry of activity at its meeting on March 16, 2023, the Federal Communications Commission (FCC), finalized rules aimed at robocaller identification and mobile carrier requirements, and proposed a new rule for comment that is aimed at closing the “lead generator loophole.” These rules will all have significant impact in the telemarketing space, and the proposed rule relating to lead generators will impact a vast swath of companies that rely on third-party or enterprise-wide telemarketing consent to communicate with consumers.
Proposed rule to close the “lead generator loophole”
Most notably among the rules proposed, the FCC is seeking to ban the practice of obtaining a single consumer consent as grounds for delivering calls and text messages from multiple marketers or entities on subjects beyond the scope of the original consent. The FCC is specifically seeking comment on amending the Telephone Consumer Protection Act (TCPA) consent requirements to require that where a consumer provides consent to be called for telemarketing purposes, the consent will apply only to callers “logically and topically” associated with the website and/or entity that solicits consent, and whose names are clearly disclosed on the same web page.
For example, if a lead generator sells leads to multiple companies, it must clearly disclose those company names in the consent language itself (i.e., not in a separate, linked page listing dozens or even hundreds of potential calling parties). Further, if a consumer provides consent to be called by a particular disclosed company, under the proposed rule, the consent would not necessarily apply broadly to that companies affiliates unless (at a minimum) those affiliate are logically and topically associated with the website or disclosed entity.
This is an area of TCPA consent that the FCC has not previously addressed. The FCC therefore specifically seeks on comment on whether consumers may in fact find multiple solicitations helpful with a single consent for the purpose of comparison shopping.
Proposed rule to extend Do Not Call protections to text messages
The FCC also announced that it is seeking comment on a proposal to clarify that Do Not Call (DNC) Registry protections, which blocks marketing messages to the registered numbers in the database, apply to text messages. This change should come as little surprise to companies that have faced TCPA claims arising from violations of the DNC rules based on text messages, as the FCC as well as courts have widely applied the DNC rules to texting. Nonetheless, the FCC has never explicitly stated that “text messages” are “calls” for TCPA purposes. The FCC’s current DNC rules protect wireless phone subscribers by requiring prior express invitation or permission in writing for calls to wireless numbers on the DNC Registry.
The FCC stated in its proposal that prior commenters asked the FCC to clarify that the DNC rules apply to both voice calls and texts. The FCC specifically noted that the DNC protections do not depend on whether the caller uses an autodialer, unlike some provisions of the TCPA. The FCC now seeks comment on whether this proposal would further protect consumers or may result in reduction of desired text messages.
FCC rules are generally adopted by a process known as “notice and comment” rulemaking. Under that process, the FCC gives the public notice that it is considering adopting or modifying rules on a particular subject and seeks the public's comment. The FCC considers the comments received in developing final rules. Comments are due 30 days after the proposal’s publication in the Federal Register.
Rules adopted at March 16 meeting
The FCC also finalized two new rules in its March 16 meeting.
First, mobile carriers will be required to block text messages that come from invalid, unallocated, or unused numbers. Mobile carriers must also block texts from numbers that the subscriber to the number has self-identified as never sending text messages, and numbers that government agencies and other well-known entities identify as not used for texting. Carriers will have to establish a point of contact for text senders so the senders can inquire about blocked texts.
Second, the FCC also adopted a new rule aimed at closing a gap in its caller ID authentication rules for robocalls. The new rule will require intermediate providers that receive unauthenticated IP calls directly from domestic originating providers to use STIR/SHAKEN to authenticate those calls. By requiring the intermediate provider in the call path to authenticate those calls, the FCC stated it is closing a gap in the caller ID authentication regime and facilitates government and industry efforts to identify and block illegal robocalls.
Conclusion
The FCC is often slow to react to changes in technology or trends in TCPA litigation. Now that it has issued new rules and proposed other rules, however, it is incumbent upon companies that communicate with consumers and customers via calls and texts to be proactive in complying with the new rules and commenting on proposed rules. The proposed rule regarding the so-called lead generator loophole should be of particular concern to companies that rely on third-parties or affiliates to obtain proof of consent on their behalf.
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