Understanding the FCC one-to-one consent rule update

Are you familiar with the Federal Communications Commission’s (FCC) Telephone Consumer Protection Act (TCPA) one-to-one consent rule? If not, you may be leaving your business vulnerable to hefty fines and damage to your reputation.

In this detailed blog post, we’ll take a closer look at the FCC one-to-one consent, examining its importance, the main requirements, exceptions, best practices for compliance, and the repercussions of not complying. By the time you finish reading, you’ll be well-equipped to navigate this regulatory landscape and protect your business from potential pitfalls.

What is the TCPA one-to-one consent rule?

The TCPA one-to-one consent rule is a regulatory requirement established by the FCC to ensure that consumers provide prior express written consent for receiving marketing communications to each advertiser who will contact them (referred to as “seller” in the TCPA update, often is a lead buyer).

The FCC one-to-one consent rule was formally adopted on December 13, 2023, and will take effect on January 27, 2025.

Why is the TCPA one-to-one consent rule so important?

In today’s digital world, consumers can be inundated with marketing and sales promotional text messages and calls, some of which they don’t want or are even potentially fraudulent. The recent FCC one-to-one consent ruling update is intended to provide protection against this barrage of unwanted and intrusive communications.

In a world where happy customers are the key to success, showing that you respect their privacy and choices can make a huge difference. By getting their clear go-ahead before reaching out, you’re showing that you value their time and their preferences. This can help you build a solid, long-lasting relationship with your customers, who will be more likely to come back to you in the future.

Therefore, the FCC 1-to-1 consent rule isn’t just about following the law; it’s about something bigger. It’s a commitment to protecting consumers’ contact information and running your business the right way. When you put consumer consent first, you’re not only protecting people from unwanted calls and texts, you’re also building a culture of honesty and respect. And that leads to stronger customer relationships, a better brand, and more success in the long run.

What are the main requirements under the FCC’s TCPA one-to-one consent rule?

The FCC’s TCPA one-to-one consent rule includes several key requirements:

Individual record of consent by each lead buyer

• Each advertiser must obtain and retain appropriate prior express written consumer consent if robocall/robotext technology will be used in the marketing sales outreach.
  • This is perhaps the most important change in new requirements for the TCPA update. The advertiser is now the one that bears nearly all of the legal and financial risk in an inquiry or TCPA lawsuit.
  • However, it is highly suggested that both the advertisers and the lead sellers retain the consent record.
• Prior express written consent has been clarified to mean an agreement that authorizes one identified advertiser to contact a consumer. 
• For comparison sites with multi-select lists, the advertisers must be identified and selected individually by the end consumer consenting to the communication outreach.
• The consent must be documented in writing and bear the consumer’s signature in compliance with the E-SIGN act. The terms, agreement, and consent can be provided and captured digitally.

Clear and conspicuous disclosure

• Disclosures about the nature of the consent must be clear and apparent to a reasonable consumer. This includes informing consumers that they will receive robocalls or robotexts from the identified party.

Logical and topical communication

• The communications must be logically and topically related to the initial interaction that prompted the consent. For example, if a consumer consents to communications on a car loan comparison website, they should not receive communications about unrelated services like debt consolidation​.

Do-Not-Call and text message regulations

• The rule codifies that text messages are subject to the same regulations as calls under the National Do-Not-Call (DNC) Registry. Marketing texts cannot be sent to numbers on the DNC list without prior express invitation or permission​.
• Mobile carriers are required to block texts from numbers flagged for sending illegal texts. This helps to reduce spam and fraudulent messages​.

Record-keeping requirements

• Advertisers must keep thorough records of consent under the FCC 1-to-1 consent rule. Also, under the separate but related telemarketing sales rule (TSR) from the Federal Trade Commission (FTC), businesses performing the communication outreach are required to keep these records for at least five years from the date of consent and outreach. This documentation is important to have in case of a regulator questioning or lawsuit inquiry and can serve as proof of the consent transaction.

Implementation and compliance

• Businesses have a transition period to comply with these new requirements, which will officially be enforced starting January 27, 2025. This period allows publishers, advertisers, and related businesses to adjust their practices and ensure they meet the new and updated consent requirements.

What are the exceptions to the FCC one-to-one consent rule?

The FCC one-to-one consent rule, while crucial in protecting consumers from unconsented communications outreach, does have certain exceptions that allow businesses to contact individuals without prior express written consent. These exceptions provide businesses with some flexibility in communicating with consumers in specific situations.

For example, the TCPA recognizes the need for swift communication in emergencies. Businesses can send texts or automated calls without prior consent if they are crucial for protecting people’s health or safety. This exception covers alerts for instance about severe weather, recalls, or public safety notifications.

Best practices on how to comply with the FCC one-to-one consent rule

To ensure compliance with the FCC one-to-one consent piece of the ruling, businesses should implement robust procedures and systems. Here are some best practices to consider:

Obtain clear and explicit consent

Always get the green light in writing from your customers before sending any text messages or making robocalls. Make sure the consent language is crystal clear and to the point. Clearly state why you need their consent and give them a simple way to opt out.

When asking for consent, keep it simple and straightforward. Don’t use jargon or language that could be misinterpreted. Be direct about why you need their consent and how they can opt out.

Document consent

You must have a record of the consent transaction including date, time, who consented, and what language they agreed to. This consent transaction record should be checked (programmatically or manually) for compliance by the contacting party before the calling or texting outreach.

The TCPA notes needing “prior express written consent” (PEWC) but the ESIGN rules allows for the consent agreement and signature to be provided and collected digitally.  

Since some lead generation involves multiple companies or services providers, it is highly recommended that both the lead seller and advertiser each have their own record of the consent transaction. Retain these records, just in case you need to show that you’ve been following the rules to respond to a lawsuit or if you are subject to a regulator inquiry.

See below how you can easily start doing this with TrustedForm.

Make unsubscribing easy

Respect the right of consumers to opt out. Ensure that every text message or robocall includes a straightforward, accessible method for unsubscribing. This could be a dedicated number, a text message keyword, or a link in the message.

Educate your team

It’s crucial that your employees are well-versed in the TCPA’s one-to-one consent rule. Regular training not only prevents unintentional missteps but also ensures everyone is on the same page when it comes to compliance. Documented training and policies can also help in the legal defense if there is a lawsuit or regulator inquiry.

Use consent-based marketing platforms

Consider using products within ActiveProspect’s platform, like TrustedForm, to make the process of getting, managing, and documenting consumer TCPA consent easier and more efficient.

Start documenting lead events with TrustedForm

Confirming that prior express written consent was obtained from consumers before sending text messages or robocalls may seem like a daunting task, especially for large organizations with extensive customer lists. However, there is a solution that simplifies the process and provides peace of mind: TrustedForm.

TrustedForm is the ultimate compliance solution for documenting TCPA consent on digital lead capture forms, offering a number of products to help you:

• Document how leads were generated to provide evidence to lead buyers or litigators.
• Access and store documentation of consent for the statute of limitation of applicable regulations.
• Verify that leads have given consent in order to mitigate compliance risk.

Start certifying lead consent with TrustedForm now! All you need to do is:

1. Sign up for a free ActiveProspect account.
2. Get the TrustredForm Certify SDK for your lead source.
3. Add it to your forms that collect prior express written consent.

Penalties for violating the FCC’s 1-to-1 consent rule

Violating the FCC’s one-to-one consent rule under the TCPA can lead to significant penalties.

Financial penalties

Violators can be sued for actual monetary loss or $500 per violation, whichever is greater. If the court finds that the violation was willful or knowing, the penalty can increase to $1,500 per violation​.

Legal consequences

Non-compliance can lead to class action lawsuits, where multiple plaintiffs combine their claims. This can significantly increase the financial liabilities for the violating entity.

Operational impact

Courts may issue injunctions to stop businesses from continuing their non-compliant practices immediately. This can disrupt normal business operations and require substantial changes to marketing and lead generation processes​.

Reputational damage

Violating TCPA regulations can lead to negative publicity and loss of consumer trust, which can have long-term impacts on a business’s reputation and customer relationships.

Final thoughts

Gathering FCC one-to-one consent is crucial in order to protect consumers from the growing nuisance of spam text messages and non-consented robocalls.

By requiring businesses to obtain prior express written consent before reaching out to consumers, this regulation update provides individuals with more transparency on personal data sharing (privacy) between companies in lead generation transactions and reduces the number of unsolicited telephone calls or text messages.

Adhering to the rule is not only a legal obligation but also a fundamental aspect of building trust and maintaining a positive reputation among customers. Not doing so can lead to legal trouble, including fines and lawsuits. Plus, violating the rule can damage your relationship with your customers and hurt your bottom line. If you have any questions or concerns about your practices, it’s a good idea to consult with a legal advisor.

Fortunately, there are tools like TrustedForm to help you streamline and automate your TCPA consent management process. Get a free demo now to see how it works!