Three Things Lead Generators Need to Know About the FCC New One-to-One Consent Rule

As previously blogged about here, the Federal Communications Commission recently published the final, single-seller, one-to-one lead generator consent rule (the “Rule”). The Rule amends the definition of “prior express written consent” for purposes of the Telephone Consumer Protection Act and will dramatically impact the lead generation industry.

How Does the New One-to-One, Single Seller Rule Impact Lead Generation?

When utilizing regulated technologies such as automatic telephone dialing systems (“ATDS”), artificial or prerecorded voice telephone calls, artificial intelligence voice telephone calls, outbound interactive voice response, and voicemail technology using artificial or pre-recorded  voice messages, consumers will be required to select each “seller” – the ultimate provider – of a product or service from whom they want to receive telephone calls from.

Note that manual dialing may not provide cover, including insofar as telephone numbers on a do-not-call registry and various state legal regulations are concerned.

Further note that single “seller” consent does not encompass lead generators and other intermediaries, with potentially limited exception.  Furthermore, it also appears that sharing consent across corporate affiliates will also be considered a Rule violation.

The cost of violating any of the Rule’s provisions are potentially devastating.  Plaintiffs’ attorneys will be ready to pounce.  Do not attempt to secure compliance on your own.  Contact an FTC lawyer to discuss legal regulatory considerations for keeping you and your business from becoming low hanging fruit.

The effective date for the single seller provisions of the Rule is January 2025.  Importantly, leads generated prior thereto will be subject to the Rule after that date.

What Does “Logically and Topically” Related to the Interaction Mean?

The Rule provides that prior express written consent must be “logically and topically related” to the interaction the prompted consent.  The FCC has thus far not adopted a definition of “logically and topically,” saying only that texters and callers should limit content “to what consumers would clearly expect.”  The breadth of this requirement will be challenged judicially, which will most likely shed light on the contours thereof.

Who Will be Effected by the Rule?

The Rule will dramatically impact marketers and lead generators, including, but not limited to, businesses that operate comparison websites, lead generation websites, lead sellers and purchasers, those that rely on TCPA consent and call centers.

If you have questions or would like assistance determining how the new FCC one-to-one consent rule could impact your business, including the development of strategies designed to maximize the effectiveness of direct marketing efforts while ensuring compliance with the Rule, please contact a qualified TCPA attorney such as the author of this article.

Takeaway:  Prior to the new one-to-one ruling many digital marketers included partner pages that linked thousands of brands and companies that consumers purportedly provided consent from whom to receive telemarketing calls.  The Rule requires lead generators, telemarketers and other digital marketers to specifically identify each individual product or service provider that could potentially contact a consumer and obtain separate affirmative assent to be contacted by each, individually, in order for lawful “prior express written consent” under the TCPA.  Consent mut be obtained separately for each identified seller.  Additionally, telephone calls covered by the Rule must be “logically and topically” related to circumstances surrounding consent.  The Rule also contains new recordkeeping requirements, including an affirmative obligation that callers secure consent records from third-parties prior to initiating telephone calls.

Richard B. Newman is an FTC compliance lawyer and telemarketing practices attorney at Hinch Newman LLP.  Follow FTC Attorney on X.  

Informational purposes only. Not legal advice. This article is not intended to and should be construed as a complete summary or discussion of the Rule and all of its obligations and restrictions. May be considered attorney advertising.