FCC TCPA update: Unraveling the nuances of “logical and topical”

During our recent webinar “Decoding the latest FCC ruling,” we heard from industry experts about the complexity of the FCC’s latest TCPA update. They provided valuable insights and practical advice to help businesses work towards ensuring compliance over the next 12 months.

Now, we want to shine the spotlight on one of the most – if not THE most – contentious aspects of this rule: the concept of “logical and topical.” Let’s dive right in!

Trying to clarify “logical and topical”

As Launch Potato’s General Counsel, Craig Ready, explains in the “Decoding the latest FCC ruling” webinar, the FCC’s new rule says: “Calls and texts must be logically and topically associated with the interaction that prompted the consent.”

In its commentary, the FCC states: “Robotext and robocalls that result from consumer consent obtained on comparison shopping websites must be logically and topically related to that website”. They then go on to specify that the scope of consent “can be reasonably inferred from the purpose of the website.”

Lastly, in the appendix the FCC states: “The seller (brand, service or lead buyer doing the outreach) must be logically and topically related to the content of the website on which consent is obtained.”

So, there are three instances where “logical and topical” is linked to three different aspects: interaction, purpose, and content. It’s no surprise that this can cause some confusion.

However, the FCC has made it clear that they won’t dive into the nitty-gritty details of “logical and topical”, leaving it up to individuals to define it within reason. As Craig Ready points out, some may argue that “reasonable” is subjective, but he still went on to try to clear up the confusion and uncover a sensible definition for “logical and topical”.

Launch Potato’s General Counsel, Craig Ready, suggests that the rule should be interpreted by considering the first instance: “Calls and texts must be logically and topically associated with the interaction that prompted the consent.” Although it is still a bit ambiguous, it can be interpreted broadly.

An example of “logical and topical” interaction

As Craig Ready explains in the webinar, let’s take the example of a sweepstakes (sweeps) website, one of those specialized sites with a single purpose. As you’re going through a survey, you come across some questions that seem unrelated to the sweeps. They start asking about your personal life – do you have health insurance? Are you over 65? And then, you stumble upon a question asking if you’d like XYZ Medicare Company to contact you about Medicare offers. In this case, there seems to be a logical and topical connection between these questions and the consent you’re giving.

They’ve been probing you about your health status, age, and interest in insurance. So, while it might not directly relate to the purpose of the site, it certainly relates to the interaction that led to you giving consent. In Craig Ready’s opinion, this interaction is logically and topically linked to the consent it prompted.

How businesses can approach “logical and topical”

As suggested by Craig Ready, there are a few ways businesses could go about “logical and topical”, depending on the level of risk they are willing to take.

1. Focus on the rule

Despite what the FCC says in the commentary and appendix, the rule clearly states that “calls and texts must be logically and topically associated with the interaction that prompted the consent.” Therefore, as long as the outbound call or text relates to the topic that prompted the consent, then it must be compliant.

2. Focus on the content

Let’s go back to the sweeps website example. Imagine you have a section on your sweeps website dedicated to discussing health insurance or another non-sweeps-related topic. Now, here’s the thing – some might argue that it’s unrelated, but not every website has one sole purpose. In fact, it’s pretty rare. And that’s where the flaw lies in the FCC’s commentary. They assume every website has one purpose, but that’s far from reality.

So, strategy two involves expanding upon strategy one by strategically diversifying the content on your site. By ensuring a logical and topical connection to the content of the site, you can strengthen your argument and establish a more coherent and compelling case for obtaining consent.

These are a couple of strategies that businesses could start considering when it comes to “logical and topical”. Watch the webinar’s recording to expand on these strategies.

For now, here are some actions you should take right away that will improve your position:

• Ensure you’re working towards obtaining one to one consent.
• Carefully examine and enhance your notice and consent language.
• Document  every consent to contact transaction with TrustedForm Certify.
• Retain the TrustedForm Certificate and store it for future reference.

Ultimately, as our Director of Privacy, Security, and Compliance, Benjamin Farrar, wisely advises, you should prioritize “what puts you in the best defensible position.”

Final thoughts

In conclusion, while the “logical and topical” aspect of the latest FCC ruling presents new challenges and uncertainties, Craig Ready is “pretty confident that the collective brain power in the industry will be able to figure this out.”

With careful planning, clear communication, and innovative adjustments, businesses will be able to confidently navigate this new terrain and achieve success. And ActiveProspect is here to help.

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