If you’re unfamiliar with the Federal Communications Commission’s (FCC) Telephone Consumer Protection Act (TCPA) one-to-one consent rule, your business could be at risk of significant fines and reputational harm. This critical regulation emphasizes consumer protection by requiring explicit consent before initiating marketing communications.
In this post, we’ll unpack the essentials of the one-to-one consent rule—what it is, why it matters, and how it can impact your business. By understanding this regulation, you’ll be better equipped to comply and safeguard your organization from avoidable pitfalls.
What is the TCPA One-to-One Consent Rule?
The TCPA one-to-one consent rule is a vital regulatory standard introduced by the FCC to ensure that consumers explicitly agree to receive marketing communications. This rule mandates prior express written consent for each individual advertiser, often referred to as the “seller” in TCPA terminology.
This rule is particularly relevant for businesses that purchase or sell leads, as it holds every advertiser accountable for obtaining consent directly from the consumer before initiating any form of marketing outreach. It aims to prevent unauthorized use of consumer data and ensures transparency between businesses and their potential customers.
The FCC formally adopted the one-to-one consent rule on December 13, 2023, with an enforcement date set for January 27, 2025. This timeline provides businesses with an opportunity to review their processes, update compliance measures, and align with the regulation’s requirements.
1. Manually Dialed Calls
The new rules do not apply to telemarketing calls made without an ATDS or artificial/prerecorded messages. Lead generators can continue business as usual for these types of calls, collecting and sharing leads without securing consent for telemarketing calls using automated systems. Sellers can also use alternative methods, such as manually dialed calls or texts, to share comparison shopping information.
The Supreme Court’s Facebook, Inc. v. Duguid decision narrowed the definition of an ATDS to systems that generate numbers using a random or sequential number generator, reducing the scope of this requirement.
2. Do Not Call Rules
Calls to numbers on the Do Not Call (DNC) Registry require either an established business relationship or prior express permission. While the TCPA does not define “invitation,” the FCC has implied that written agreements between consumers and sellers are necessary for DNC compliance.
The FTC’s Telemarketing Sales Rule already enforces one-to-one consent for DNC numbers, and the FCC is likely to follow suit. Sellers should prepare for these stricter requirements going forward.
3. Live Lead Transfers
Lead generators and aggregators selling warm lead call transfers can continue operations with minimal changes. They can manually dial consumers and transfer them to seller clients without breaching the new PEWC rules.
The FCC clarified in response to Zillow’s comment that such warm lead transfers, as live calls without autodialing or prerecorded/artificial voices, remain permissible under the TCPA before and after the new rule changes (Order, ¶ 31, n.75).
However, for calls using ATDS or artificial/prerecorded messages, one-to-one consent is required. This can be obtained by clearly disclosing the caller’s identity on the website or via other compliant methods. Callers should always secure consent before transferring the call.
4. Website Design: Checkboxes for Sellers
Lead generators and website publishers can obtain one-to-one consent for multiple sellers by implementing checkbox lists on their websites. Consumers can select each seller they wish to hear from, whether the site lists 5 or 500 sellers (Order, ¶ 41, ¶ 33). The only requirement is that the listed sellers must provide products or services logically related to those promoted on the website (Order, ¶ 34).
5. Website Design: Auction Before Consent
Websites can also identify the lead buyer before the consumer reaches the consent page, automatically populating the disclosure with the buyer’s name. While this ensures compliance, the lead would be exclusive to that buyer and cannot be resold.
6. Retention of Proof for Valid PEWC
The FCC’s Order, ¶ 49 emphasizes that texters and callers bear the burden of proof to demonstrate valid prior express written consent (PEWC). Consent must come directly from the consumer and cannot rely solely on lead generators to retain proof. Fabricated leads (“fake leads”) or consent not directly given to the seller are invalid under the TCPA.
Key Compliance Points:
- Consent is non-transferable and cannot be sold to another caller.
- Lead generators must provide all necessary information under the Telemarketing Sales Rule (16 C.F.R. § 310.5), including the consent language as presented to the consumer.
- Lead buyers should ensure they receive proof of consent with lead data to address potential TCPA complaints.
The FCC’s statement about non-transferable consent reaffirms that sellers not listed as marketing partners cannot legally contact consumers using an ATDS or prerecorded messages. However, comparison shopping websites can still obtain one-to-one consent for multiple sellers via webforms or calls, as outlined in other sections of the Order (¶¶ 31-34, 37-45).
Why the TCPA One-to-One Consent Rule Matters for Your Business?
The TCPA one-to-one consent rule is a key regulation set by the FCC to protect consumers from unwanted marketing calls and texts. This rule mandates that businesses obtain explicit, written consent from each consumer before reaching out, ensuring that every individual seller has separate consent to contact the consumer. By requiring clear, unambiguous permission, the rule aims to prevent the use of autodialers or prerecorded messages without consumer approval.
This update is important for businesses to avoid legal consequences and maintain consumer trust. It emphasizes the need for businesses to respect consumers’ privacy and preferences, thereby creating stronger, more transparent relationships with customers. Non-compliance can lead to hefty fines and damage to a business’s reputation.
Key Points:
- Requires explicit, written consent before contact.
- Protects consumers from unwanted marketing communications.
- Ensures each seller obtains separate consent for outreach.
- Prevents the use of autodialers and prerecorded messages without permission.
- Non-compliance can lead to significant legal penalties and loss of consumer trust.
Penalties for Violating the FCC’s 1-to-1 Consent Rule
Non-compliance with the FCC’s one-to-one consent rule under the TCPA can result in serious consequences for businesses.
Financial Penalties
Violators face potential lawsuits for actual monetary damages or a fine of $500 per violation, whichever is greater. If the violation is found to be willful or knowing, the fine can escalate to $1,500 per violation.
Legal Consequences
Non-compliance can trigger class action lawsuits, greatly increasing the financial liability for the violating company.
Operational Impact
Courts may issue injunctions, forcing businesses to immediately halt non-compliant practices. This can disrupt operations and require costly adjustments to marketing and lead generation strategies.
Reputational Damage
Violating the TCPA can result in negative publicity and diminished consumer trust, which may have long-lasting effects on the business’s reputation and customer relationships.
Best Practices for Complying with the FCC One-to-One Consent Rule
Businesses must implement clear, straightforward procedures to ensure compliance with the FCC’s one-to-one consent rule. Here are some essential best practices to follow:
Obtain Clear and Explicit Consent
Always secure written consent before sending texts or making robocalls. Ensure the consent language is clear, unambiguous, and explains the reason for the request, along with an easy opt-out method. Avoid jargon and keep the process simple.
Document Consent Properly
Maintain a detailed record of each consent, including the date, time, the individual who consented, and the exact language they agreed to. This documentation should be reviewed for compliance before any outreach is made.
The ESIGN Act permits digital collection of consent, which should also be retained for reference in case of legal challenges or regulatory inquiries. If multiple companies are involved in lead generation, both the lead seller and the advertiser should maintain separate records of consent.
Make Unsubscribing Simple
Ensure that consumers have an easy way to opt out by including a clear, accessible unsubscribe method in every text message or robocall. This could be a dedicated number, a keyword for texting, or a link within the message.
Educate Your Team
Train your staff regularly on the TCPA’s one-to-one consent rule. Proper education helps prevent errors and ensures everyone is aligned on compliance. Having documented training and policies is also valuable in case of a lawsuit or regulatory inquiry.
Leverage Consent-Based Marketing Tools
Use platforms like LeadsRain to streamline the process of obtaining, managing, and documenting consumer TCPA consent efficiently.
Conclusion
Complying with the FCC’s one-to-one consent rule is vital for protecting consumers from spam and unwanted robocalls. It enhances transparency in data sharing and reduces unsolicited communications.
Adhering to this rule not only meets legal requirements but also fosters trust and strengthens your brand’s reputation. Failing to comply can result in legal penalties, lawsuits, and harm to customer relationships. For peace of mind, consult with a legal advisor to ensure full compliance.
