In an effort to further protect consumers from unwanted and illegal calls and text messages, the Federal Communications Commission (FCC) adopted a new rule implementing the Telephone Consumer Protection Act (TCPA) that enacts significant new requirements and prohibitions, including about how businesses obtain consent to communicate with consumers.  The FCC’s announcement can be found here, and its Second Report and Order, which provides a comprehensive explanation of the rule, is available here.

Perhaps most significantly, the new rule closes “the lead generator loophole” by clarifying that the TCPA’s prior express written consent requirement “applies a single seller at a time.”  Recognizing that consumers who consent via forms on comparison shopping websites may not realize that these sites are operated by lead generators (not merchants) or know that their information can be re-sold multiple times, the rule prohibits lead generators, texters and callers from using a single instance of consent to inundate consumers with communications on behalf of multiple sellers. 

According to the FCC, this “one-to-one consent” (i.e., consent to one seller at a time) must be obtained after a clear and conspicuous disclosure to the consumer that they will receive robocalls and/or robotexts from the seller.  Additionally, any resulting calls and texts must be “logically and topically related” to the website through which consent is collected.  For example, the FCC says that “a consumer giving consent on a car loan comparison shopping website does not consent to get robotexts or robocalls about loan consolidation.”  Further, the requisite consent may be obtained using easily-implemented methods, such as a check box list that allows the consumer to choose each seller that they wish to hear from or, alternatively, a clickthrough link to a business that may directly obtain the requisite consent from the consumer.

Among other key provisions, the rule:

• requires terminating mobile wireless providers to block text messages from a particular number following notification from the FCC.  Upon receipt of such notice, the provider must promptly begin blocking all texts from the identified number(s) within the specified timeframe and respond to the FCC’s Enforcement Bureau certifying that it has initiated blocking.  If the provider determines that blocking should cease, it must notify the Enforcement Bureau of that finding as well as any supportive evidence. 
   
• codifies the application of the National DNC Registry’s existing protections to text messages.  In other words, texters must have the consumer’s prior express consent before sending a marketing text to a wireless number in the DNC Registry.
   
• encourages providers to make email-to-text an opt-in service.  In doing so, the FCC responds to commenters’ observations that text messages originating from email addresses, rather than telephone numbers, account for a significant percentage of fraudulent texts, largely because this process allows the sender to be anonymous.

The new consent requirements will be effective 12 months after publication of the FCC’s Second Report and Order in the Federal Register, to allow businesses time to prepare their compliance efforts.