tl;dr

• The FCC has introduced a new “one-to-one” consent rule for robocalls and robotexts under the TCPA, effective January 27, 2025.

• Businesses must now obtain separate, specific consent for each individual seller before sending marketing messages.

• Consent must be clear, conspicuous, and limited to logically related topics.

• Companies need to overhaul their consent collection processes and implement new tracking systems.

• Proactive compliance measures are crucial to avoid legal issues and build consumer trust. 

In a landmark move, the Federal Communications Commission (FCC) has implemented a new “one-to-one” consent rule under the Telephone Consumer Protection Act (TCPA). This significant update is set to reshape how businesses obtain and manage consumer consent for marketing communications. As the January 27, 2025 effective date approaches, it’s crucial for companies to understand and prepare for these changes to ensure compliance and avoid potential legal pitfalls.

The Evolution of TCPA Consent

The TCPA has long required businesses to obtain prior express written consent before sending marketing messages using automatic telephone dialing systems or artificial/prerecorded voices. However, the new one-to-one consent rule takes this a step further, closing what the FCC refers to as the “lead generator loophole.”

Previously, marketers could obtain blanket consent from consumers to receive communications from multiple “marketing partners.” This practice often led to consumers receiving unwanted messages from companies they had never directly interacted with. The new rule aims to put an end to this by requiring separate, specific consent for each individual seller.

Key Components of the New Rule

Under the revised regulations, prior express written consent now means an agreement that “clearly and conspicuously authorizes no more than one identified seller” to send marketing messages to the consumer. This shift from broad to specific consent represents a significant change in how businesses must approach their marketing strategies and lead generation practices.

The new rule introduces several critical requirements that businesses must adhere to.

First and foremost, each consent agreement must authorize only one identified seller to send marketing messages. This means that companies can no longer rely on a single consent to cover multiple affiliated businesses or marketing partners.

Second, the consent disclosure must be clearly visible and easily understandable to the average consumer. Burying consent language in fine print or hiding it behind hyperlinks will no longer suffice.

Third, the content of marketing messages must be logically and topically related to the context in which the consumer provided consent. For instance, if a consumer gives consent on a car loan comparison website, they should not receive messages about unrelated services like debt consolidation.

Finally, the consent agreement must identify the specific telephone number to which the consumer is authorizing messages to be sent.

Implications for Businesses

The one-to-one consent rule will have far-reaching implications for businesses, particularly those relying heavily on lead generation and partner marketing strategies. Companies will need to reassess and likely overhaul their consent collection processes to ensure compliance.

For comparison shopping websites and lead aggregators, the changes are particularly significant. These platforms can no longer obtain a single consent for multiple sellers. Instead, they must provide consumers with the option to select individual sellers from whom they wish to receive communications. This change may necessitate updates to website designs, consent forms, and backend systems to manage individual consents effectively. It also places a greater burden on businesses to maintain accurate records of each specific consent obtained.

Best Practices for Compliance

To navigate these new requirements successfully, businesses should consider implementing several best practices:

1. Review and update all consent language to ensure it clearly identifies a single seller and the specific types of communications authorized.

2. Implement systems to track and manage individual consents for each seller or product line. This may involve significant changes to existing customer relationship management (CRM) systems or the adoption of new consent management platforms.

3. Conduct thorough staff training. Employees involved in marketing, sales, and customer service should be educated on the new requirements and the importance of obtaining proper consent.

4. Perform regular audits of consent records and communication practices to ensure ongoing compliance and identify any potential issues before they become problematic.

5. Consider using consent management platforms or services to help streamline the process of obtaining and documenting consent. These tools can provide a centralized system for managing consents, ensure proper documentation, and facilitate easier auditing and reporting.

Preparing for Implementation

With the effective date of January 27, 2025 just four months away, the complexity of these changes means that businesses should start preparing now. This lead time provides an opportunity to thoroughly assess current practices, develop new systems and processes, and test them before the rule goes into effect.

The FCC’s one-to-one consent rule represents a significant shift in the regulatory landscape governing marketing communications. While it poses challenges for businesses, it also presents an opportunity to build stronger, more transparent relationships with consumers. By embracing these changes and implementing robust consent practices, companies can not only ensure compliance but also demonstrate their commitment to respecting consumer preferences.