On December 13, the Federal Communications Commission will consider adopting new rules that could turn the lead generation industry on its head. The FCC’s November 22 Draft Report and Order, if adopted, would potentially require “one-to-one consent,” disrupting industry practices and possibly opening the door to future litigation for the unwary. Other issues that would be addressed in the Report and Order, and discussed below, include National Do Not Call registry protections applying to text messaging, text messaging blocking, and encouragement by the FCC to make email-to-text an opt-in service.

“Closing the Lead Generator Loophole”

While acknowledging that many comparison shopping websites benefit consumers, the Report and Order would advise that “texters and callers must obtain a consumer’s prior express written consent from a single seller at a time on the comparison shopping websites that often are the source of lead generation.”[1]

According to the Draft Report and Order, “one-to-one consent must come after a clear and conspicuous disclosure to the consenting consumer that they will get robotexts and/or robocalls from the seller.”[2] Additionally, texts and calls resulting from that consent “must be logically and topically related to th[e] website” (though the FCC would decline to define “logically and topically”).[3] Under the proposed revision, the regulation defining prior express written consent would read:

The term prior express written consent means an agreement, in writing, that bears the signature of the person called that clearly and conspicuously authorizes no more than one identified seller to deliver or cause to be delivered to the person called advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice. 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.[4]

The FCC would provide two examples that would comply with its new rules while also explaining that these examples are not all-inclusive (an important caveat for potential future defendants of TCPA cases falling within the purview of the draft rules):

Websites, including comparison shopping websites, can use a variety of means for collecting one-to-one consent for multiple sellers to comply with our rule. For instance, the website may offer a consumer a check box list that allows the consumer to specifically choose each individual seller that they wish to hear from. Alternatively, the comparison shopping website may offer the consumer a clickthrough link to a specific business so that the business itself may gather express written consent from the consumer directly.[5]

Although the draft rule complicates the consent process, it “does not” prevent businesses from “obtaining leads from third-party comparison shopping websites or from making calls pursuant to those leads.”[6]

If the rule is adopted, in its current guise, it would provide for a six-month implementation period and would likely impact a variety of industries, from lead generators to lead buyers.[7]

National DNC Protections Apply to Text Messages

The Report and Order would also “adopt[ the FCC’s] proposal to codify the National DNC Registry’s existing protections to text messages.”[8] In the discussion of the draft rule, the FCC reiterated that texters must have a “consumer’s prior express invitation or permission before sending a marketing text to a wireless number in the DNC Registry.”[9]

Absent from the draft Report and Order, however, is any substantive discussion of the National DNC rules’ language limiting its application only to numbers that qualify as “residential.” See 47 C.F.R. 64.1200(c)(2) (“No person or entity shall initiate any telephone solicitation to…[a] residential telephone subscriber who has registered his or her telephone number on the national do-not-call registry….”). The draft Report and Order briefly touches on the issue in a footnote, repeating that the FCC “will presume wireless subscribers who ask to be put on the national do-not-call list to be ‘residential subscribers.’”[10] Given the ubiquity of cell phones being used exclusively for, or in conjunction with, businesses, whether a given number, in fact, qualifies as “residential” will continue to be of paramount importance in litigation (and including for class certification purposes). See e.g., Chennette v. Porch.com, Inc., 50 F.4th 1217, 1225 (9th Cir. 2022) (discussing factors to be considered when evaluating “whether mixed-use phones are ‘residential’”).

Requiring Mobile Wireless Providers to Block Text Messages

In addition to consent and the National DNC, the Report and Order would address having terminating providers block text messages from particular numbers upon notification from the FCC.

Under its draft new rules, the FCC’s Enforcement Bureau’s notification to terminating providers of suspected illegal text messages would be required to:

(1) identify the number(s) used to originate the suspected illegal texts and the date(s) the texts were sent or received; (2) provide the basis for the Enforcement Bureau’s reasonable belief that the identified texts are unlawful; (3) cite the statutory or regulatory provisions the suspected illegal texts appear to violate; and (4) direct the provider receiving the notice that it must comply with section 64.1200(s) of the Commission’s rules.[11]

Notably, a footnote in the draft Report and Order explains that the notification “should include any relevant nonconfidential evidence from credible sources.”[12]

If adopted, the new rules would require that the provider “promptly investigate the texts and number(s)” identified by the FCC.[13] All texts from the identified number(s), moreover, would be required to be blocked “within the timeframe” specified in the Enforcement Bureau notice “unless [the provider’s] investigation determines that the identified texts are legal.”[14] The draft new rules would also require that the provider report the results of its investigation, certify that it is blocking texts, or, if it concludes that the texts are lawful, explain why it has “reasonably concluded” that the texts are not illegal.[15]

The Report and Order would add that in the event that an individual or entity believes its texts are being blocked in error, it can use the “point of contact required under section 64.1200(r) of the Commission’s rules”[16] and would note that the FCC, at least here, is “not adopt[ing] any additional protections in case of erroneous blocking.”[17]

Email-to-Text

While it does not order it, the FCC would also “encourage providers to make email-to-text an opt-in service.” The genesis for this, according to the FCC, is to reduce fraudulent text messages that can be sent with “relative anonymity.”[18]

Other Issues

Although the Report and Order would propose substantial changes, the FCC would decline to adopt caller ID authentication requirements for text messaging, noting that the wireless industry is evaluating technologies that could address the issue.[19]

A Waiver Order that would be adopted simultaneously with the Report and Order would adopt a 12-month waiver to allow providers to use the Reassigned Numbers Database to determine whether a number that the FCC has ordered to be blocked has been permanently disconnected. The goal of the waiver, the FCC would state, is to prevent blocking lawful text messages from a new subscriber to a number ordered to be blocked.[20]

A Second Further Notice of Proposed Rulemaking, which would also be adopted simultaneously with the Report and Order, would seek comment on several items, including text message blocking, text message authentication, the use of traceback requests for texting, and whether to make email-to-text an opt-in service.

Conclusion

The draft Report and Order has been circulated for consideration by the FCC at its upcoming open meeting on December 13. Companies, including lead generators and buyers, would be wise to monitor developments in this space closely. Mintz will continue to provide coverage regarding any developments as they occur.

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