Three Things Lead Generators Must Know About the New FCC Single Seller Rule

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 One-to-One, Single Seller Rule Impact Lead Generators?

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.

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

Also 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 a lead generation compliance and defense 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.

Consent Limited to Matters “Logically and Topically” Related to the Interaction

There is nothing really 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.

However, now, 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 Effect the Most?

 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 attorney such as the author of this article.

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.

Richard B. Newman is an FTC defense lawyer and telemarketing practices attorney at Hinch Newman LLP. 

Informational purposes only. Not legal advice. 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. May be considered attorney advertising.

Richard B. Newman

Richard B. Newman is a nationally recognized FTC advertising compliance, CID investigation and regulatory enforcemetn attorney. He regularly provides advertising counsel and represents clients in high-profile investigations and enforcement proceedings initiated by the Federal Trade Commission, state attorneys general, departments of consumer affairs, and other federal and state agencies with jurisdiction over advertising and marketing practices. Richard is also an ecommerce lawyer and spam defense attorney. His practice additionally focuses upon false advertising defense, data privacy, cybersquatting, intellectual property law and transactional matters relating to the dissemination of national advertising campaigns, including the gamut of affiliate marketing, telemarketing, lead generation, list management and licensing agreements. Richard advises clients on how to minimize the legal risks associated with digital marketing, email marketing, telemarketing, social media influencer campaigns, endorsements and testimonials, negative option marketing models, native advertising, online promotions and comparative advertising,

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