FCC Adopts New TCPA Rules for Lead-Generated Communications. Marketers that solicit sales or advertise products or services using “robocalls” or “robotexts” (i.e., calls or texts that are initiated using an “automatic telephone dialing system” or voice calls made using an artificial or prerecorded voice) will need to comply with a new set of rules from the Federal Communications Commission (FCC). In a December 2023 order, the FCC claims to have closed the “lead generator loophole” by adopting rules requiring marketers to obtain consumer consent to receive robocalls or robotexts “one seller at a time.” Once the rules take effect, businesses and websites that generate leads, such as comparison- shopping websites, will not be permitted to obtain a single consent to cover regulated calls or texts from multiple sellers. Rather, “prior express written consent” must be obtained separately for each identified seller. The new rules also require that “one-to-one” consent must come after a “clear and conspicuous” disclosure to the consenting consumer that they will get robocalls or robotexts from the designated seller. Additionally, the rules will require robocalls and robotexts that result from consumer consent obtained on comparison shopping websites to be “logically and topically” related to that website. The stated purpose is to ensure that consumers do not receive robocalls or robotexts that go beyond the scope of their consent, which can “be reasonably inferred from the purpose of the website at which they gave that consent.” To illustrate the intent behind this change, the FCC stated that a consumer giving consent on a car loan comparison shopping website does not consent to get robotexts or robocalls about loan consolidation. The new robocalling/robotexting rules are part of the TCPA. The TCPA already is a major source of class action litigation, and the new rules provide new ammunition for the plaintiffs’ bar looking for new targets. New TCPA Rules on Consent Revocation. On February 15, 2024, the Federal Communications Commission (FCC) approved amendments to the rules and regulations implementing the TCPA. These amendments enhance consumers’ ability to revoke consent to robocalls and robotexts.
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