FCC Rules on Lead Generation "Consent Farms" to Capture Consent for Telemarketing Purposes

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In December 2022, the FCC’s Robocall Response Team announced that the Enforcement Bureau has ordered telecommunications companies to stop carrying robocalls related to known student loan scams. Voice service providers must cease accepting robocall traffic from Urth Access, LLC which investigators believe, along with associated entities and individuals specified in the Order, generated upwards of 40% of student loan debt robocalls in October.

Building on FCC action in November, U.S. voice service providers must now take all necessary steps to avoid carrying this robocall traffic. This operation is also the target of an ongoing investigation by the FCC’s Enforcement Bureau.

FCC Chairwoman Jessica Rosenworcel:

“Scam robocalls try to pull from the headlines to confuse consumers. The newest trick in their playbook? Trying to take advantage of people who want help paying off their student loans. Today we’re cutting these scammers off so they can’t use efforts to provide student loan debt relief as cover for fraud.”

What’s New:

The Enforcement Bureau has ordered all U.S. voice service providers to take all necessary steps to avoid carrying robocall traffic from the Urth Access. Today’s order followed a Public Notice in November that warned providers of this concerning flood of robocalls. The notice had authorized providers to cut off the traffic and today’s order requires that they do so. If they do not, they must regularly report to the FCC of the steps they have taken to mitigate the traffic.

“We will continue to deploy all of the tools in our arsenal to eliminate bad actors’ access to U.S. communications networks in furtherance of their schemes. This targeted enforcement action provides U.S. telecommunications providers with the necessary information to apply “Know Your Customer” principles to assist in protecting consumers from the individuals and entities named in this order,” said FCC Enforcement Bureau Chief Loyaan A. Egal.

Student Loan Robocalls:

The FCC’s investigation into Urth Access’s robocall campaigns has involved multiple partners. The USTelecom’s Industry Traceback Group identified Urth Access as the originator for substantial volumes of apparently unlawful student loan-related robocalls. In addition, the call blocking company YouMail helped the FCC estimate the scale of calls made during these robocall campaigns: approximately 40% of all student loan-related robocalls reaching YouMail subscribers in October 2022 appeared to originate from Urth Access. The apparent spike in student loan debt scam calls appears to have followed the announcement in August of the President’s student loan forgiveness program, just as similar spikes had followed prior Department of Education loan forbearance announcements since March 20, 2020.

The robocalls include prerecorded advertising messages offering student loan assistance, including loan forgiveness (examples: audio 1, audio 2). Many of them reference an entity such as the “Student Loan Center.” For example, some of the robocalls contained the following message:

“Hello this is to inform you that the Student Loan payment suspension has been extended to December 31 of this year. Also, everyone is now going to get $10,000 dismissed upon income verification. If you do not verify your income, on January 1, your payments will start back up automatically. To receive the full dismissal, not just the $10,000 dismissal, a petition will be filed in your behalf so that your loan payments do not begin on January 1. If you're being serviced by Nelnet, Navient, Fed loans or Great Lakes, please press 5 on your phone now. If your service or was not listed, you can also receive a dismissal by pressing 5. If you have verified your income and received your partial or full dismissal already, please press 9 to stop your notifications. Thank you.”

How We Got Here:

Last month, the Enforcement Bureau issued a “K4 Notice” authorizing all U.S.-based voice service providers to cease carrying any traffic originating from the Urth Access, consistent section 64.1200(k)(4) of the FCC’s rules. The Bureau also sent a cease-and-desist letter to Urth Access to formally warn them to stop carrying the suspicious robocall traffic or they would face today’s action directing other providers to cut off their traffic. The Enforcement Bureau also opened a formal case and is actively investigating these calls for possible further legal action. 

The FCC recently issued a consumer alert about a potential uptick in student loan debt robocalls in the wake of the recent announcement of nationwide federal student loan debt relief. The FCC also issued an Enforcement Advisory to remind voice service providers of their role in protecting consumers by combatting the scourge of illegal robocalls aggressively, especially student loan robocalls, following recent announcements regarding student loan forgiveness and deferment.

The Bigger Picture:

Under Chairwoman Rosenworcel, the Robocall Response Team was created to serve as an FCC staff working group that pulls together expertise from across the agency to leverage the talents of enforcers, attorneys, policy makers, engineers, economists, and outreach experts to combat the unyielding menace of illegal spoofed, scam, robocalls.

This effort has resulted in:

  • record-breaking spoofing and robocall fines;

  • closing gateways used by international robocallers to reach Americans’ phones;

  • widespread implementation of STIR/SHAKEN caller ID authentication standards to help traceback illegal calls and improve blocking tools to protect consumers;

  • the signing of robocall investigation partnerships with 41 states plus the District of Columbia and Guam; and

  • unprecedented policy proposals to combat the rising threat of bogus robotexts.

Lead Generators That Use "Consent Farms" to Capture Prior Express Written Consent for Telemarketing Purposes

FTC lawyers and the Federal Communications Commission are carefully scrutinizing lead generation opt-in forms that purportedly get prior express consent to hundreds or thousands of “marketing partners” for telemarketing purposes. Consult with an FTC defense attorney to discuss current agency policy and actions.

It appears that the FCC does not believe that such "consent farms" are sufficient under the applicable telemarketing legal regulations. In fact, obtaining consent for various products on one website may be problematic, as may too many calls for one product line. It also appears that the FCC takes the position that seeking consent to resell and resell under appliable telemarketing legal regulations (rather than being company specific) may raise an eyebrow and that all involved (including, but not limited to, the seller and broker) are potentially liable. The FTC still loves complaints from competitors and consumer privacy remains front-and-center.

In its December 8, 2022 Urth Access LLC Order, the FCC determined that prior express written consent was allegedly not properly obtained because: (i) the websites at issue did not seek consent to receive robocalls about student loans; (ii) the consent was only accessible if a consumer clicked a hyperlink to a second webpage; and (iii) the second webpage listed over 5,300 “marketing partners.” Listing over 5,300 marketing partners is probably an extreme example—it is not clear how many marketing partners will be deemed “too many” to list. Thus, it may be worth considering that the website: (i) clearly explain the type of calls consumers should expect to receive by providing consent and that the consent be consistent with the marketing on the page; (ii) that any link to the partner network open in a pop-up box (that cannot be blocked) on the same webpage rather than redirect to a second webpage; and (iii) that companies narrow marketing partner lists as much as possible.

The Student Loan Robocall Operation allegedly did not receive adequate consent of the called parties for its robocalls. Urth Access claimed, in response to the Traceback Consortium, that its customers had properly obtained the called parties' consent for the robocalls. Urth Access provided the Traceback Consortium “consent logs” that included website addresses that allegedly captured the called party's consent. But none of these websites through which the Student Loan Robocall Operation allegedly captured “consent” appear to have any connection with student loan assistance. At best, they arguably represent consent to receive robocalls about health insurance products/services. Moreover, the Student Loan Robocall Operation was advised that these student loan robocalls were not related to health insurance.

The Urth Access LLC Order goes on to further state, in pertinent part...

In addition, the consent logs apparently fail to provide adequate disclosure that would constitute effective consent as required by the FCC's rules. For example, for telemarketing calls, the Commission requires the caller to provide a “clear and conspicuous disclosure” when obtaining prior express written consent. The websites included TCPA consent disclosures where the consumer agreed to receive robocalls from “marketing partners.” These "marketing partners” would only be visible to the consumer if the consumer clicked on a specific hyperlink to a second website that contained the names of each of 5,329 entities. We find that listing more than 5,000 “marketing partners” on a secondary website is not sufficient to demonstrate that the called parties consented to the calls from any of these “marketing partners.” Consequently, because: (i) the websites that Urth Access has thus far referenced do not seek or obtain consent to receive robocalls about student loans; (ii) the consent was accessible only if the consumer clicked on a hyperlink and reviewed a second webpage; and (iii) the second website listed 5,329 ostensible “marketing partners,” we conclude that the Student Loan Robocall Operation apparently lacked consent for the robocalls it make to consumers.

The foregoing is squarely considered a "dark pattern" issue.

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