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Jan. 9, 2025

The FCC’s “Prior Express Written Consent” Rule is Changing This Month: What Marketers Need to Know

By Steven A. Augustino, Jack Pringle, JD, CIPP/US, Josh Myers

A year ago, the Federal Communications Commission (FCC) adopted new rules designed to address alleged abuses by lead generators under the Telephone Consumer Protection Act of 1991 (TCPA). Under the TCPA, consumers generally are required to provide their prior express written consent before they receive an automated call or text to a mobile number.  The FCC rule was intended to close what the agency described as a “lead generation loophole,” which included the resale of consumer data and “harvesting” or sharing of a consumer’s TCPA consent with hundreds of sellers unbeknownst to the consumer.  The rule, however, modified the definition of “prior express written consent” for all TCPA purposes and has implications beyond lead generation and lead generation situations. 

The FCC provided affected parties one year to implement any changes necessary in their operations, with the new rule scheduled to take effect this month. Beginning on January 27, 2025, calls or texts subject to the TCPA must meet the following requirements: 

1.  Senders must obtain a consumer’s prior express written consent for an automated call/text that involves an advertisement or marketing;

2.  Senders must gather the consumer’s prior express written consent “a single seller at a time” (i.e., 1-to-1 consent);

3.  Consent must be obtained via a “clear and conspicuous disclosure” to the consumer; and

4.  The content of the call/text must be “logically and topically associated” with the interaction that resulted in the consent.      

Considerations in Implementing the Rule

The new rule will take effect on January 27.  On that date, automated calls or texts subject to the TCPA must be supported by prior express consent obtained according to the new rule.  Although one party has asked for clarification from the FCC whether previous consents obtained under the current rules are still valid, the FCC has not responded to that request as of this writing.  Senders of messages should consult counsel to determine if existing consents are sufficient for calls made on or after January 27.

Further, senders of messages should ensure that the consent they have complies with the new 1-to-1 Consent Rule, which requires that a consumer’s TCPA consent authorize “no more than one identified seller” at a time.  According to a recent FCC FAQ guide, message senders “must obtain a consumer’s written consent for marketing messages for each seller” (emphasis added).  A sender of messages should ensure that it is the named seller associated with each consent obtained.  This potentially raises some questions about the scope of consent held by a seller, particularly across subsidiaries or affiliates. While it is clear that lead generators may not “shar[e] lead information with a daisy-chain of ‘partners,’” senders should consult with counsel about how to apply the rule to other scenarios.

Finally, senders should ensure that the consent on which a call or text is based was derived from a “clear and conspicuous” disclosure that is “logically and topically associated with” the interaction where consent was obtained.  Senders should seek the advice of counsel in interpreting these provisions.     

Actions to Watch

Two potential developments could impact the implementation of these rules.

First, simultaneous with the new rule, the FCC issued a Second Further Notice of Proposed Rulemaking, which sought comment on how the FCC “can further minimize any potential economic impact on small businesses in complying with [its] one-to-one consent requirement for prior express written consent under the TCPA,” including ways that the FCC can “clarify or refine” its 1-to-1 consent requirement and lessen the compliance costs that small businesses must bear.  Although the FCC has completed the comment cycle in response to the Second Further Notice, it has not taken any further regulatory action at this point.  Some parties in the pending rulemaking have proposed modifications to the rule to address comparison shopping and other aspects of the rule. Any action by the FCC before January 27 could impact compliance obligations.

Second, the Insurance Marketing Coalition Limited challenged the 1-to-1 Consent Rule in the United States Court of Appeals for the Eleventh Circuit.  The court heard arguments on the challenge on December 18, 2024, during which the court appeared to have significant concerns with the FCC’s action and reasoning.  Moreover, although the court initially declined to stay the 1-to-1 Consent Rule’s effective date, during oral argument, the panel raised the question again, which could forebode action prior to the January 27 effective date.  Senders should monitor the court’s actions for future developments. 

Please feel free to contact us or your regular Nelson Mullins contact for further updates.