Businesses that use robocalls or robotexts for marketing purposes will soon need to adjust to new rules that take effect in early 2025. The Federal Communications Commission made several changes to rules under the Telephone Consumer Protection Act (TCPA) that will take effect in the coming months. New rules requiring one-to-one consent for marketers using robocalls and robotexts will go into effect on January 27, and three big changes to revocation rules will take effect on April 11. Now is a good time to review the changes to determine if your business needs to make any changes to existing practices to ensure compliance.
Quick Background on TCPA
- The TCPA prohibits calls, including telemarketing calls, to wireless telephone numbers using an automated telephone dialing system (ATDS) or a prerecorded or artificial voice message without the prior express written consent (PEWC) of the consumer.
- It also prohibits telemarketing calls to residential phone numbers using prerecorded or artificial voice messages without a PEWC.
- Additionally, it prohibits solicitation calls to numbers listed on the National Do Not Call Registry without the consumer’s prior express consent or unless there is an established business relationship with the consumer.
- The FCC has included text messages in these prohibitions.
New Rule Closes Loophole
In late 2023, the FCC published a new rule intended to close what was known as the “lead generator loophole.” This new rule will be effective January 27, 2025. Marketers and lead generators have long been permitted to obtain consent from a consumer (typically on a website) and apply that consent among multiple entities seeking to send advertising communications. However, the FCC’s new rule will change the definition of PEWC to close that loophole by including two additional terms. The new definition of PEWC will be:
- An agreement in writing, that bears the signature of the person called or texted that clearly and conspicuously authorizes no more than one identified seller to deliver or cause to be delivered to the person called or texted advertisements or telemarketing messaged using an automatic telephone dialing system or an artificial or prerecorded voice.
- Calls and texts 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.
Shouldering Responsibility Directly
Additionally, under the new rules, advertisers bear the responsibility of making sure that the consent was obtained in compliance with the new rule. It will not be sufficient for an advertiser to claim they relied on the lead generator to obtain proper consent. The advertiser must be able to show that the consumer gave consent for its advertisement individually.
Lead generators and advertisers will be able to implement these new requirements by making adjustments to their websites. For example, instead of having a consumer check one box to consent to advertising, the website may now show a list of advertisers allowing a consumer to check a box next to each advertiser. This would ensure that only those advertisers specifically checked by the consumer would be permitted to send advertisements to them.
“Logically and Topically Associated”
The new rule will also require that the advertisements delivered be “logically and topically associated” with the interaction. The FCC did not define what it meant by the use of these new terms. However, the agency did provide one example. The rule explained that if a consumer consented to receipt of advertisement for a new car loan, that would not permit the sending of advertisements related to debt consolidation.
3 Big Revocation Changes
The FCC published the changes to the revocation rule in February 2024, but the new rules regarding these changes to revocation will be effective April 11, 2025. There are three important changes to the rule.
- Consumers will be permitted to revoke their consent to robocalls or robotexts in any reasonable manner, including using the words, “Stop,” “Quit,” “Cancel,” “Opt-Out,” “Unsubscribe,” “Revoke,” or “End.”
- Advertisers must honor the Do Not Call and revocation requests as soon as practicable but in no event later than 10 business days after the consumer has made the request.
- Text message senders may send only one follow-up message seeking confirmation or clarification of the request and it must be sent within 10 minutes of the request.
