As previously blogged about, here, the Federal Communications Commission recently published the final, single-seller lead generator consent rule (the “Rule”). The Rule amends the definition of “prior express written consent” for purposes of the Telephone Consumer Protection Act and will dramatically impact the lead generation industry.

How Does the FCC’s Single Seller Ruling Actually Impact Lead Generators and Telemarketers?

When utilizing regulated technologies such as automatic telephone dialing systems, artificial or prerecorded voice telephone calls, artificial intelligence voice telephone calls, outbound interactive voice response, and voicemail technology using artificial or pre-recorded voice messages, consumers will be required to select each “seller” – the ultimate provider - of a product or service from whom they want to receive telephone calls from.

Caveat. Manual dialing may not provide cover, including insofar as telephone numbers on a do-not-call registry and various state legal regulations are concerned.

Note that single “seller” consent does not encompass lead generators and other intermediaries, with potentially limited exception. Furthermore, it also appears that sharing consent across corporate affiliates will also be considered a Rule violation.

The cost of violating any of the Rule’s provisions are potentially devastating and the plaintiffs’ bar will be circling. Do not attempt to secure compliance on your own. Contact an eCommerce attorney to discuss various strategies designed to keep you and your business out of harm’s way.

The effective date for the single seller provisions of the Rule is January 2025. Importantly, leads generated prior thereto will be subject to the Rule after that date.

Consumer Consent Limited to Matters “Logically and Topically” Related to the Transaction

Aside from codification, there is nothing new from a regulatory policy standpoint. In fact, in 2016 the FTC held a workshop on lead generation and specifically discussing that use of consumer lead data should be restricted to buyers with a legitimate need therefor.

Now, however, the Rule specifically states that prior express written consent must be “logically and topically related” to the interaction the prompted consent. The FCC has thus far not adopted a definition of “logically and topically,” saying only that texters and callers should limit content “to what consumers would clearly expect.” Legal meaning will most likely come from litigation judicial decisions involving the Rule and its provisions.

Who Will the Rule Most Effect?

The Rule will dramatically impact marketers and lead generators, including, but not limited to, businesses that operate comparison websites, lead generation websites, lead sellers and purchasers, those that rely on TCPA consent and call centers.

If you have questions or would like assistance determining how the new FCC one-to-one consent rule could impact your business, including the development of strategies designed to maximize the effectiveness of direct marketing efforts while ensuring compliance with the Rule, please contact a qualified TCPA lawyer such as the author of this article. This article is not intended to and should be construed as a complete summary or discussion of the Rule and all of its obligations and restrictions.

Takeaway: Prior to the new one-to-one ruling many digital marketers included partner pages that linked thousands of brands and companies that consumers purportedly provided consent from whom to receive telemarketing calls. The Rule now requires lead generators, telemarketers and other digital marketers to specifically identify each individual product or service provider that could potentially contact a consumer and obtain separate affirmative assent to be contacted by each, individually, in order for lawful “prior express written consent” under the TCPA. Consent mut be obtained separately for each identified seller. Additionally, all covered telephone calls must be “logically and topically” related to circumstances surrounding consent. The Rule also possesses new recordkeeping requirements, including an affirmative obligation that callers obtain prior express written consent records from third-parties prior to initiating telephone calls.