Overview
After the Federal Communications Commission (FCC) updated the Telephone Consumer Protection Act (TCPA) in December 2023 to close the “lead generator loophole,” everyone in the lead-gen ecosystem was left with more questions than answers, especially regarding text messaging marketing. Does this apply to SMS programs? What if our texting program doesn’t use an Automatic Telephone Dialing System (ATDS)? These are questions that need answers before the rulings take effect in January 2025 and our FCC webinar series is here to help you.
While the new rulings may seem like a maze with no escape, our webinar will help keep your business at the forefront of compliance as our panel navigates the SMS intricacies of the FCC’s latest TCPA update.
In the third episode of our new FCC-centric webinar series, ActiveProspect’s CRO, Margaret Wise, and Director of Privacy, Security, and Compliance, Benjamin Farrar, sat down with Alexandra Krasovec, Partner at Manatt, Phelps & Phillips, LLP, for a robust conversation covering all things compliance for the future of text messaging marketing.
As the updated ruling takes shape over the next year before going into full effect in January 2025, businesses are advised to reassess their risk profiles and take action to prepare for the new regulatory landscape. The journey of adjusting to these new FCC regulations has truly just begun, and it’s time to stay alert, informed, and proactive in making strategic decisions.
Watch the entire webinar here
Episode 3 highlights
Introduction
“Well, good morning or afternoon depending on where you are. I’m Alexandra Krasovec. I am a partner at Manatt, Phelps, and Phillips. We are a national firm and we do, among many other things, consumer protection, advertising, and competition practice, which includes, of course, the Telephone Consumer Protection Act.”
“I have been doing TCPA compliance counseling, litigation defense, and regulatory enforcement matters for just about a decade, almost exclusively. It is a huge part of my practice and I’ve really seen the whole, you know, running, in what activity has been coming from the FCC as it ebbs and flows, and definitely right now it is hot and heavy. Which is, I know, what we’re here to talk about today. So very excited. Thank you, ActiveProspect for having me, and looking forward to our conversation.”
Revocation
“Well, opt-out, or the ability to opt out, which we kind of for shorthand can just call revocation, is something that the FCC read into the TCPA in 2015. It used to be litigated heavily whether or not you could actually revoke, or if you had an agreement, whether or not a consumer could revoke. But the FCC’s made very clear, consumers can revoke their consent by any reasonable means, and if you get that revocation, you need to honor it.”
“The FCC now has a pending proposed rule that they’re going to be putting up, I guess tomorrow, right, at the open meeting and it’s going to address in more detail exactly what goes into revocation. And it also is going to change the regulations so that the regulations now speak to revocation, which is not something that they did in 2015.”
Non-auto dialers… Be cautious
“There is a prominent attorney in this space who initially flagged that there is a distinction in the FCC order between automated calling, which is what they’re regulating with the prior express written consent 1-to-1 requirements, and the DNC requirements. That distinction exists, but I will caution everybody that I have already seen the plaintiff’s bar getting creative on that one. And trying to apply prior express written consent requirements to the prior express invitation, or permission exception, to DNC. So, because there’s a signed written agreement requirement, that is what they’re using as a hook. And I don’t believe that that is an accurate read, or an appropriate read of the regulations, but it is something they’re trying. And if you want to feel good defending a claim like that, you can just have prior express written consent anyway and you won’t have to worry about it.”
“So that is something to think about. I will be duking that out in court in the coming months and you probably will see an order at some point on that issue. But you know, I can tell you that you will have much more comfort if you have prior express written consent.”
Golden ticket
“If you are making marketing outreach, again, get that heightened prior express written consent. It is the laundry list of things that you have to have, but if you obtain it, that is as good as gold.”
Helpful Resources
- Learn more about the highest standard for independent proof of consent.
- Discover Ping Pick Post, our proposed solution for the new regulatory landscape.
- Prepare your business for January 2025.
ActiveProspect is committed to being a guiding force in the lead-gen space as we navigate the evolving regulatory landscape together. Be sure to save your seat for episode four of our FCC-centric webinar series, featuring Convoso’s Compliance Officer, Tammy Glover Fowler, and Troutman Amin Partner, Puja Amin, coming February 28th.
