FCC Closes Lead Generator Loophole by Requiring One-to-One Consent; Proposes Further Regulation of Robocalls/RoboTexts | Troutman Pepper

On December 13, by a vote of 4-1, the Federal Communications Commission (FCC) adopted new rules aimed at “closing the ‘lead generator’ robocall/robotexts loophole.” Specifically, the rule requires telemarketers to obtain consumer consent to receive robocalls and robotexts one seller/brand at a time, instead of allowing a single consent to apply to multiple telemarketers. This is also known as one-to-one consent. The order does not specifically define “robocall” or “robotext.”

Additionally, the new rule requires clear and conspicuous disclosures be given to consumers informing them that they will receive robotexts/robocalls from the seller and the robocalls/robotexts must also be logically and topically related with the interaction that prompted the consent. In the FCC fact sheet issued last month on the then-proposed rule, an example of “logically and topically related” was “a consumer giving consent on a car loan comparison shopping website does not consent to get robotexts or robocalls about loan consolidation.”

The new rule also permits blocking “red flagged” robotexting numbers, codifies do-not-call rules for texting, and encourages an opt-in approach for delivering email-to-text messages. The FCC will now require mobile carriers to block texts from certain “red flagged” numbers. The rules also make it illegal for marketing texts to be sent to numbers on the Do-Not-Call registry. And the order encourages, but does not require, providers to make email-to-text messages an opt-in service.

The new rule will become effective six months after publication in the Federal Register, which has not yet occurred.

The FCC is currently also taking public comment on proposals regarding the following:

  • Additional blocking requirements when the FCC notifies a mobile carrier of a likely scam text-generating number;
  • Text message authentication, modeled on the STIR/SHAKEN protocols for phone calls; and
  • Requiring, rather than simply encouraging, providers to make email-to-text services opt-in.

Bottom line: These new rules will require major changes in the online lead generation industry.

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