The top 10 FCC TCPA questions and answers for lead gen businesses

In the digital age, businesses rely heavily on communication technologies including websites, telephone call dialing technologies, and text messaging to reach customers. However, these channels must operate within the legal telemarketing framework set by the Telephone Consumer Protection Act (TCPA). With significant updates to the FCC TCPA rules set to come into effect in the coming months, businesses must keep their compliance practices up-to-date to avoid costly penalties. 

This article will delve into the intricacies of the latest FCC TCPA regulations updates, providing answers to 10 crucial questions that will help organizations navigate the regulatory landscape and safeguard their operations. Along the way, we will introduce you to ActiveProspect’s TrustedForm, a cutting-edge solution designed to help businesses stay ahead of the curve and maintain the highest compliance standards.

What is the FCC’s guidance on the TCPA?

Before we dive into the main TCPA-related questions, let’s recap the FCC TCPA guidance. The FCC’s guidance on the TCPA emphasizes key regulations aimed at protecting consumers from unwanted telemarketing and robocalls. Under the FCC TCPA guidance, companies must:

• Obtain prior express written consent before making calls or sending text messages using an automatic telephone dialing system (ATDS) to consumers.
• Obtain explicit written consent for telemarketing calls and messages, including robocalls and pre-recorded messages.
• Comply with the National Do Not Call (DNC) Registry and maintain their internal do not call lists to avoid contacting registered individuals. Keep in mind that some states also have their own DNC regulations that differ from federal ones.
• Call only during specific hours, typically between 8 a.m. and 9 p.m. in the recipient’s time zone. Note that some states have their own specific calling hours.
• Remember that if they outsource call center services to third parties, they must ensure that these third parties also comply with TCPA regulations.
• Be aware that non-compliance with the FCC TCPA guidance can result in hefty fines, ranging from $500 to $1,500 per violation, depending on the severity and willfulness of the violation.
• Provide a clear and easy way for consumers to opt out of receiving future calls or messages.

1. Why is the FCC cracking down on the lead gen ecosystem?

According to ActiveProspect CRO Margaret Wise, “We’re having this conversation because the FCC looks out for consumers. And one of the biggest complaints consumers have is receiving unwanted calls and unexpected calls, particularly robocalls.”

Wise continued: “They [FCC] identified that the lead generation industry spawns a lot of unwanted calls. And so they are trying to really tighten up that consumers are only receiving calls that they expect to receive from the people or entity from whom they expect to receive a call regarding a topic they expect to receive a call.”

2. How do the recent (Q1 2024) FCC TCPA rules updates impact lead gen businesses?

Here is short timeline and bullet points regarding some of the FCC’s key updates: 

January 2024: Advanced methods to target and eliminate unlawful robocalls

• Extends Do Not Call (DNC) protections to text messages.
• One-to-one consent requirements redefine prior express written consent (PEWC) to mean an agreement that “clearly and conspicuously” authorizes one identified seller at a time (lead buyer) to contact a consumer.
• Requires that calls must be “logically and topically” associated with the website interaction that prompted the consent”.
• New record-keeping requirements: Brands (lead buyers) must also maintain documentation of consent to call and cannot rely on documentation held by the (lead) sellers.
• FCC can demand mobile/VOIP numbers be blocked.

February 2024: Empowering consumers to block robocalls and robotexts

• Updates allow consumers to revoke consent for “regulated technology” calls and texts at any time by using “any reasonable manner” (call, text, email, postal mail, etc.)
• Requires companies to honor company-specific DNC and revocation-of-consent requests as soon as practicable, and within no more than 10 business days after receipt of the request.

August 2024: The TCPA now applies to AI technologies that generate human voices on a call

• The use of AI-generated voices will require PEWC.

3. What is one-to-one consent?

The TCPA one-to-one consent update means that consent to contact by phone or text message is between a single business and an interested party/potential customer. This rule update clarifies that lead generators or lead sellers can no longer obtain consent to contact and hold onto it on behalf of multiple businesses.

As Launch Potato’s General Counsel, Craig Ready explains it:

“It can’t be marketing partners’ links anymore or just multiple entities listed in a row. If that’s what you have been doing, it has to be clear and conspicuous, and there’s some language in the commentary that indicates it needs to be separate pieces where each company is mentioned and the consumer would take some sort of opt-in action to agree for each company listed there to reach out to them… This applies to outbound marketing calls that are done with regulated technology (ATDS), which is defined as an autodialer.”

4. When does the one-to-one FCC TCPA regulations update go into effect?

The FCC initially planned to enforce the one-to-one update within a span of 6 months, but later extended it to 12 months before officially publishing the approved ruling. This means the update will take full effect on January 27, 2025.

5. What does “logically and topically” related mean?

This one is tricky. The rule states that “calls and texts must be logically and topically associated with the (website) interaction that prompted the consent,” however, some businesses will inevitably argue the definition of what is “logical and topical.”  

Referring back to Craig Ready:  

“I think a lot of people were really freaking out about the 1-to-1 consent piece, and I totally understand that… This is a hot mess to me because ‘logical and topical’ is very messy… If you’re going to continue to do these outbound marketing calls using an autodialer, artificial pre-recorded voice, you’ve got to find a way to deal with the logical and topical piece.”

As long as the outbound call or text relates to the topic that prompted the consent, then it must be compliant. If there is any hesitation, speak to your legal counsel for guidance.

6. What if my company manually dials/texts?

Be cautious. According to Attorney Alexandra Krasovec, Partner at Manatt, Phelps & Phillips, LLP, a distinction does exist between automated and non-automated calling, but that does not fully protect your business from possible litigation. So why risk it?

“If you are making marketing outreach… Get that heightened prior express written consent,” Krasovec explained. “It is the laundry list of things that you have to have, but if you obtain it, that is as good as gold.”

7. What about processing revoked consent or a consumer’s “Do Not Contact” response?

Krasovec stated plainly, “The FCC’s made it very clear, consumers can revoke their consent by any reasonable means, and if you get that revocation, you need to honor it.”

The new FCC revocation update to the TCPA – entered into the Federal Register on April 4, 2024 –  heightens the urgency of processing “Do Not Contact” requests and specifically identifies the number of days (10) allowed to process consent revocation when consumers provide a “stop” response. It’s a move towards clearer consumer rights and requires businesses to adapt swiftly to respect customer preferences while mitigating potential legal repercussions.

8. What are potential TCPA penalties?

TCPA violations can result in penalties that range from $500 to $1,500 per violation (per call), potentially leading to tens of millions of dollars for large-scale marketing campaigns. TCPA violation penalties also extend beyond financials — businesses can risk irreparable reputation damage and the permanent loss of customer trust.

Furthermore, as long as there is money to be made, these steep penalties are never going away. As Attorney Gary Kibel, Partner at Davis+Gilbert, LLP, explained, “You know, regulators are trying to make businesses do the right thing, protect consumers, and get corrective action; class action lawyers are after the money. That’s it. In fact, class action lawyers don’t want corrective action because they want to be able to come back again and sue other parties making the same mistakes.”

9. How does the FTC rule update impact lead gen businesses?

In addition to the FCC TCPA rules updates, businesses also need to be aware of the Federal Trade Commission’s (FTC) rules and regulations regarding consumer protection and telemarketing. The FTC’s rules and powers are wider and broader than the FCC and TCPA. The FTC’s scope can cover unfair or deceptive acts or practices (UDAP) affecting commerce and can apply to a wider range of businesses and organizations.

In March 2024, the FTC announced updates to the TSR (Telemarketing Sales Rules) which include:

• The FTC has extended the TSR scope and can investigate and take action on deceptive B2B (Business-to-Business) calls. However Do-Not-Call protections were not extended to B2B calls.
• Expanded B2C (Business-to-Consumer) record-keeping requirements from 2 years to 5 years. 

10. How can I help my business adhere to the FCC’s and FTC’s latest updates?

It is clear that the FCC and FTC want to hold the lead gen ecosystem to a higher standard and you should make sure your lead generation solutions and partners are maximizing the use of the highest standard for independent proof of consent. The FCC and FTC updates are no reason to panic but are a reason to prepare with the help of TrustedForm. 

ActiveProspect’s TrustedForm provides documentation of consent and insights about the origin and authenticity of each digital lead. By adding the TrustedForm web SDK to your web form, TrustedForm documents consent-to-contact transactions in real time and provides archivable proof of consent through a unique TrustedForm Certificate. This unique certificate can be easily accessed and shared through a web URL which can be retained for up to 5 years. Discover the power of the highest independent standard for proof of consent now.

Bonus question: Where can I stay up to date on the latest FCC TCPA compliance news?

If you want to stay ahead, stay where you are, you’re in the right place.

ActiveProspect has you covered with an exclusive hub related to all things FCC and TCPA. We are committed to helping your business remain at the forefront of the evolving regulatory landscape with blogs published weekly and webinars recorded bi-weekly. 

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