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? There have been some major updates recently that you must be aware of.
In this detailed blog post, we’ll take a closer look at the FCC one-to-one consent, its recent postponement and then removal, best practices for TCPA compliance, and the repercussions of not complying. By the time you finish reading, you’ll be well-equipped to navigate the regulatory landscape and protect your business from potential pitfalls.
What is the TCPA one-to-one consent rule?
The one-to-one consent rule was a proposed update to the TCPA by the FCC, aimed at broadening the definition of prior express written consent (PEWC). This update would require consumers to be given the option to choose one or multiple companies or brands when consenting to receive marketing and sales communication calls or text messages during a single consent transaction.
The FCC 1:1 consent rule was formally adopted on December 13, 2023, and was expected to take effect on January 27, 2025.
What happened to the FCC one-to-one consent effective date?
On January 20, 2025, President Trump signed several Executive Orders, including directives for US government agencies to pause any new regulation updates. This pause was intended to allow for further review by the White House and newly appointed agency leaders.
On January 24, 2025, just days before the FCC one-to-one consent effective date, the FCC issued an order delaying the rule for up to 12 months. Moments later, the Eleventh Circuit Court of Appeals granted the Insurance Marketing Coalition’s petition that was challenging the FCC’s rule-making authority around the PEWC update, effectively eliminating the previously proposed FCC 1:1 consent rule update entirely.
Why is TCPA consent still important?
The proposed one-to-one consent rule update may be gone, but the existing TCPA consent requirements are still very much alive. 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 TCPA 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 choices and minimize onward personal data sharing 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 TCPA isn’t just about following the regulations and case 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 TCPA?
The FCC’s TCPA includes several key requirements:
Record of consumer consent
- Advertiser must obtain and retain appropriate prior express written consumer consent if robocall/robotext technology will be used in the marketing sales 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.
Do-Not-Call and text message regulations
- 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
- Lead buyers should maintain thorough records of TCPA consent, as they bear the full legal risk and burden of proof if a party later claims they “did not consent to receive a call or text message.” Additionally, under the Telemarketing Sales Rule (TSR) from the Federal Trade Commission (FTC), businesses conducting communication outreach are required to keep these records for at least five years from the date of consent and outreach. This documentation is crucial in case of regulatory questioning or lawsuit inquiries, serving as proof of the consent transaction.
Revocation of consent
- Starting April 11, 2025, businesses who are making marketing outreach via text messages and/or phone calls will be required to abide by stricter FCC revocation of consent rules.
- Under the revocation of consent rule, consumers have the right to revoke consent at any time, under any reasonable means, to both informational messages as well as marketing and sales calls or text messages.
- Businesses are required to honor and process all reasonable revocation requests within 10 business days.
- Businesses are allowed to send a one-time confirmation text after the revocation request if further clarification of the opt-out message request is needed.
To learn more about the new revocation of consent rules, take a look at this guide.
What are the exceptions to the TCPA?
The TCPA, while crucial in protecting consumers from unconsented communications outreach, does have certain exceptions that allow businesses to contact individuals without prior express consent. These TCPA 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 TCPA
To ensure compliance with the TCPA, businesses should implement robust procedures and systems. Here are some best practices to consider:
Obtain clear and explicit consent
Always present and document consent to contact from your customers before sending any text messages or using automated regulated technologies for outbound calling. 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. Avoid using jargon or language that could be misinterpreted. Be direct about why you need their consent and how they can opt out.
Document consent
You should have a record of the consent transaction including date, time, who consented, and what language they agreed to. This consent transaction record can 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. 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:
- Sign up for a free ActiveProspect account.
- Get the TrustedForm Certify SDK for your lead source.
- Add it to your forms that collect prior express written consent.
Penalties for violating the TCPA
Violating 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 TCPA 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 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!
