On November 22, 2023, the FCC released a Second Report and Order, Further Notice of Proposed Rulemaking, and Waiver Order (Report and Order) outlining new, proposed rules implementing the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (TCPA). The proposed rules (Proposed Rules) are set for consideration at the Commission’s December 13, 2023 meeting and, if adopted, could take effect as soon as six months thereafter. Significantly, the Proposed Rules, if adopted, would require that businesses obtain a consumer’s prior express written consent to calls and texts made using an automatic telephone dialing system (ATDS), prerecorded message or artificial voice “a single seller at a time.” This sea change would effectively eliminate (or at least substantially impact) the ability for consumers to consent to such calls and texts from more than one business at a time. In this proposal, the FCC is explicitly targeting lead generation and comparison shopping websites that many companies rely upon as a source of consumer leads.
The Proposed Rules also set forth other changes to the TCPA, including:
- making the TCPA’s Do-Not-Call (DNC) provisions apply to text messages
- requiring businesses to obtain prior express invitation or permission, evidenced by a signed, written agreement, to place telephone calls and to send text messages to telephone numbers listed on the DNC Registry
- implementing a “block-upon-notice” requirement, mandating certain mobile wireless providers to block all texts from a particular number whenever the FCC notifies the carrier of “illegal texts from that number”; and
- encouraging email-to-text opt-in service
First, and foremost, the Report and Order proposes to require businesses making calls or texts for marketing purposes using an ATDS, prerecorded message or artificial voice to “obtain a consumer’s prior express written consent [to such communications] from a single seller.” The FCC proposes this change to address what it calls the “Lead Generator Loophole,” which allows consumers to opt-in to receiving calls and messages from several businesses at one time. In its Report and Order, the FCC emphasizes that even if a business’s website lists multiple sellers on its webpage, the business must obtain prior express written consent from the consumer separately for each seller. The FCC suggests one way to comply with this requirement would be to have a check-box for the consumer to specifically select the seller(s) from which the consumer consents to receive calls or text messages. While the FCC acknowledges the benefit that consumers receive from multiple opt-ins—the ability to “quickly compare goods and services and discover new sellers”—the FCC nevertheless asserts that the proposed one-to-one consent would provide “legal certainty as to how [businesses] meet their burden of proof when they have obtained consent via a third party.”
The FCC states that this new one-to-one consent requirement would be enacted through an amendment to 47 C.F.R. § 64.1200(f)(9) providing as follows:
The term prior express written consent means an agreement, in writing, that bears the signature of the person called that clearly and conspicuously authorizes no more than one identified seller to deliver or cause to be delivered to the person called advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice. Calls 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.
The Report and Order also emphasizes that a consumer’s consent must follow a “clear and conspicuous disclosure” to the consumer that they will receive calls or texts from the seller, and that the content of the subsequent calls or texts must be “logically and topically associated with the website where the consumer gave consent.” The scope of “logically and topically associated/related” is not defined in the Report and Order or in the proposed text of the rule. The Report and Order states that the FCC expects businesses will “err on the side of limiting . . . consent to what consumers would clearly expect.” In addition, the FCC states that the sellers that place the calls must have possession of the consent evidence and that the seller cannot rely on “lead generators to retain proof of consent for calls the seller make.”
Overall, this one aspect of the Proposed Rule will substantially impact both lead buyers and lead sellers, while likely making comparison shopping for consumers more difficult.
DNC Provisions Apply to Text Messages
Second, the Report and Order proposes to amend 47 C.F.R. § 64.1200(e) to extend the TCPA’s existing DNC provisions to text messages. Specifically, the Report and Order states that a business “must have the consumer’s prior express invitation or permission before sending a marketing text to a wireless number in the DNC Registry.” Appendix B to the Report and Order provides that this change, if adopted, would be by amending 47 C.F.R. §64.1200(e) to include “text messages.”
Prior Express Invitation or Permission for Calls and Texts to Numbers on the DNC
Third, and notably, in the Report and Order at footnote 67, the FCC states for the first time that prior express invitation or permission, evidenced by a signed, written agreement, is required to place telephone calls and to send text messages to telephone numbers listed on the DNC Registry. The Report and Order does not, however, specify where the FCC believes this affirmative requirement exists as the rule only discusses a written agreement in the context of avoiding liability, and the FCC explicitly declines to revise 47 C.F.R. § 64.1200(c)(2)(ii).
Mandatory Text Blocking
Fourth, the Report and Order proposes to expand on the FCC’s March 2023 rulemaking, which required providers to block text messages sent from invalid, unallocated, or unused numbers. Now, the FCC also proposes to require so-called “terminating providers,” as that term is used in 47 C.F.R. s 64.1200(k) and (n), to “block all texts from a particular number or numbers when notified by the [FCC’s] Enforcement Bureau of suspected illegal texts from that number or numbers, unless a provider’s investigation shows the identified texts are legal.” The proposed, new rule would not add any additional protections for erroneous blocking, but would allow entities that believe text messages are being erroneously blocked to contact the provider in accordance with the complaint resolution provision in 47 C.F.R. § 64.1200(r). Terminating providers that fail to comply with this “block-upon-notice” requirement may be subject to the FCC’s traditional enforcement process, including monetary forfeitures.
Encouraging Email-to-Text Opt-In
Finally, the Report and Order proposes to “encourage providers to make email-to-text an opt-in service as a way to reduce the number of fraudulent text messages consumers receive.” The FCC is seeking comment on a further rulemaking on requiring email-to-text opt-in.
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