Navigating TCPA rules in a post-FCC one-to-one consent world

In our recent webinar “From pause to ruling: Adapting to the FCC & Eleventh Circuit’s TCPA decisions” we discussed a significant development in the US marketing and consent landscape, impacting present and future standards for consumer consent to contact requirements before sales or marketing telecommunications outreach.

The panel, consisting of industry experts including Steve Rafferty, our Founder and CEO, Aaron Parry, Associate at Mac Murray & Shuster, LLP, Alexandra Krasovec, Partner at Manatt, Phelps & Phillips, LLP, and Christopher Deatherage, General Council at Apollo Interactive, delved deep into the repercussions of the Federal Communications Commission’s (FCC) recently vacated one-to-one consent rule under the Telephone Consumer Protection Act (TCPA).

This seismic shift within the FCC guidelines left marketers questioning their methods of gathering customer consent. The panel laid bare the nuance that despite the one-to-one consent rule no longer holding sway, the consumer’s right to articulate clear and unmistakable consent remains paramount.

What happened to the FCC’s one-to-one consent rule?

As Alexandra explains, in December 2023, the FCC issued a one-to-one consent order, mandating that consent must be obtained on a per-seller basis, logically and topically related to the calls being made. The Insurance Marketing Coalition (IMC) filed a comment during the rulemaking process and later used the Hobbs Act to seek review of the ruling, leading to the 11th Circuit’s involvement in the IMC case.

Throughout 2024, multiple requests were made to the 11th Circuit and the FCC to stay the order while the IMC decision was pending, but these requests were denied. On the eve of the new rule’s implementation, set for January 27th, the FCC decided to stay the rule under the Administrative Procedure Act (APA). The IMC ruling was issued on the same day, leading to the vacating of the one-to-one consent rule.

This means the entire section of the FCC order related to the “lead generator loophole” is nullified. As a result, one-to-one seller-specific consent is no longer required, and the “logically and topically related” requirement is also no longer in effect.

As Alexandra continues to explain, when the 11th Circuit Court reviewed the IMC’s challenge to the FCC’s one-to-one consent rule, it examined whether the FCC had acted within its statutory authority. The Court concluded that the FCC had exceeded its authority by adding requirements that went beyond what Congress intended for the TCPA.

Specifically, the statute refers to “prior express consent” as an exception to the automated calling provision, without specifying “prior express written consent.” The latter was introduced in the 2012 FCC order, which added requirements for marketing calls to ensure clear proof of prior express consent.

The FCC’s one-to-one ruling further added two requirements: obtaining consent on a per-seller basis and ensuring that the calls were logically and topically related to the consent. However, the 11th Circuit disagreed, stating that prior express consent is already defined by common law as a “clear and unmistakable expression of a desire for something to occur.” By adding these additional requirements, the FCC was essentially creating “prior express consent plus,” which is not permissible.

As a result, we revert to the prior express written consent standard, which still requires a signed written agreement meeting specific disclosure requirements. However, courts will now need to assess whether the prior express written consent is clear and unmistakable, similar to how they evaluated consent before the one-to-one rule. According to Alexandra, this means that consent forms with hyperlinks to lists of hundreds or thousands of entities, or vague and generic marketing consent language, may not meet the clear and unmistakable standard.

What to expect moving forward

According to Aaron, the key takeaway is that the “logically and topically related” one-to-one requirement is not coming back. The court has struck it down, and it’s gone. However, this doesn’t mean it can’t return through other means, such as Congress or a state legislature.

As Alexandra clarifies, the clear and conspicuous disclosure requirements for prior express written consent remain in effect. This means you must clearly and conspicuously inform consumers that they are agreeing to receive automated marketing calls and texts, and that their consent is not a condition of any purchase or access to services. This information must be clearly and prominently placed on your form.

CMS one-to-one consent rule on TPMOs: Does it still apply?

As Christopher explains, the FCC’s one-to-one consent rule being struck down has no impact on the Centers for Medicare & Medicaid Services (CMS)’s one-to-one requirement. The reason is that CMS explicitly referenced the FCC’s rule when creating their own, but the two operate under different statutory frameworks.

The FCC’s rule is rooted in the TCPA, which grants the FCC authority to implement the TCPA but not to rewrite it. The 11th Circuit ruled that the FCC overstepped by trying to redefine prior express consent, which is beyond their statutory authority. In contrast, CMS is implementing rules based on a different statute aimed at data sharing between Third-Party Marketing Organizations (TPMOs).

CMS simply borrowed the consent mechanism from the FCC because they found it useful, but the 11th Circuit’s decision only affects the FCC’s authority, not the validity of the consent mechanism itself. Therefore, as Christopher concludes, the two rules are entirely unrelated.

As Christopher clarifies, this rule doesn’t necessarily apply to calling. If you’re a marketer making calls and not sharing data, you don’t need one-to-one consent for Medicare unless you plan to share that data with another TPMO. So, while the rules are different, one-to-one consent for Medicare is still in effect.

Christopher points out that the CMS’s one-to-one rule is currently being challenged in court, but for different reasons. While the IMC challenged the FCC’s rule on the grounds that the FCC lacked the authority to implement it, the challenge to CMS argues that the agency did not follow the proper procedures.

Consent revocation rule: Is this impacted?

The short answer is no. As Alexandra explains, the FCC’s revocation rules, some of which are already in effect, will continue to apply, with the remaining rules set to take effect on April 11. 

According to the ruling, you must recognize reasonable consumer attempts to revoke consent. The FCC has deemed certain methods reasonable, so you need to acknowledge these and apply revocations broadly across all channels, programs, and regulated calls and texts. If you want to narrow the scope of a revocation, you can use tools like a confirmatory clarifying message, which the FCC has approved.

If you haven’t reviewed this ruling or established compliance processes, Alexandra advises you should do so now, as some of these rules are already in effect and others are imminent.

Will the one-to-one consent rule return?

Christopher believes it’s possible for the one-to-one consent rule to return, but not likely from the FCC. Instead, Congress could amend the TCPA to define prior express consent, or state legislatures could implement one-to-one consent under their term marking rules.

While the 11th Circuit has closed this door by stating the FCC lacks the authority to redefine prior express consent, Congress could still grant them that authority. Previous attempts to amend the TCPA haven’t succeeded, but there are motivated individuals pushing for broader and expanded TCPA regulations. Therefore, it’s important to stay aware and keep this possibility in mind.

One-to-one consent may be gone but its best practices should remain

As Alexandra explains, the one-to-one consent rule prompted many to review their vendor contracts and disclosures. Even though this rule update is no longer in effect, she encourages you to not overlook the importance of these practices.

Ensuring that your partners provide the necessary information and that your contracts address these issues to your satisfaction remains crucial. According to all the panelists, conducting regular reviews to verify that your consents are valid is still a best practice and something you should continue to prioritize.

What is the path forward for lead generators and lead buyers?

Steve urges everyone not to feel that the work put into one-to-one consent was in vain. The industry did an excellent job adapting workflows to benefit consumers, and there’s a general consensus that one-to-one consent is advantageous for them.

As consumers, we all want better control over who contacts us and who has our data. From an advertiser’s or lead buyer’s perspective, a one-to-one consent lead is highly preferable. An explicit consent from a consumer to be contacted by your brand is the gold standard and ensures a high-quality lead. The challenge lies with lead providers and their business models, such as whether they can charge enough per lead to make it viable.

As Steve points out, the TCPA is still fully in effect, and now is not the time to let your guard down. He encourages you to remain vigilant.

He’s heard some people ask if they still need to use TrustedForm Verify. The answer is yes. TrustedForm Verify is essential for verifying that you have consent in compliance with TCPA guidelines. Whether or not one-to-one consent is part of those guidelines, you still need to ensure you have proper consent, clear disclosure language, and that your name is clearly stated. All of these requirements are still in place, so it’s crucial to pay close attention to them.

Takeaways

Here are the key takeaways from our webinar “From pause to ruling: Adapting to the FCC & Eleventh Circuit’s TCPA decisions”:

• The 11th Circuit Court ruled that the FCC overstepped its authority by adding requirements to the definition of prior express consent, such as the one-to-one seller-specific consent and logically and topically related requirements.
• The concept of prior express consent is now governed by common (case) law, which requires consent to be clear and unmistakable.
• The CMS rule related to one-to-one consent for data sharing in Medicare remains in effect, as it is based on a different statutory framework.
• The upcoming consent revocation rule, which will go into effect on April 11, 2025 is broader and more significant than the one-to-one consent rule.
• The one-to-one consent rule, while vacated, has encouraged better collaboration between lead generators and buyers, focusing on consumer transparency and compliance.

Watch the entire episode now and subscribe to InsideCBM to never miss out on an FCC, TCPA, and consent-based marketing update!

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