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FCC to change definition of “prior express written consent” in January 2025 to close “lead generator loophole”

Next year, the FCC’s new rules requiring prior written consent for robocalls and robotexts per seller will go into effect thus closing the “lead generator loophole.” Specifically, on January 27, 2025, the FCC’s amendments to the definition of “prior express written consent” will go into effect. The term “prior express written consent” will now require: (1) “an agreement, in writing”; (2) “that bears the signature of the person called or texted” (italics added); (3) “that clearly and conspicuously authorizes no more than one identified seller to deliver or cause to be delivered to the person called or texted advertisements or telemarketing messages”; and by (4) “using an automatic telephone dialing system or an artificial or prerecorded voice.” Of note:

• The definition will now include text messages in addition to calls.
• Prior express written consent will apply to one seller at a time.
• Written consent must be obtained after providing the consumer with clear and conspicuous disclosure, which the FCC described as “notice that would be apparent to a reasonable consumer.” The FCC provides that such disclosure must inform the consumer executing the consent agreement:
  • By signing the agreement, such person authorizes one seller to deliver to them telemarketing calls or texts using an automatic telephone dialing system or an artificial or prerecorded voice; and
  • The consumer is not required to agree to enter or sign the agreement (directly or indirectly) as a condition of purchasing any property, goods or services.
• The calls and texts must be “logically and topically associated with the interaction that prompted the consent.”
• The prior express written consent agreement must identify the telephone number to which the signatory authorizes such advertisements or telemarketing messages to be delivered.
• The prior express written consent requirement will apply to both residential and business phone lines.

The FCC noted that comparison shopping websites may offer a check box list that allows the consumer to choose the seller of their choice or a clickthrough link to the seller to obtain the consent from the consumer directly.

The FCC released its final rule in January affecting the TCPA with most rules having gone into effect March and July of this year, but the amendment to 47 CFR 64.1200(f)(9) on prior express written consent will go into effect next year.

Privacy, Cyber Risk & Data Security FCC TCPA Consent Robocalls Robotext

FCC regulations target scam robotexts

On March 16, the FCC adopted its first regulations specifically targeting scam text messages sent to consumers. Recognizing that robotexts are generally covered under the TCPA’s limits against unwanted calls to mobile phones, the FCC stated that the new regulations will require mobile service providers to block certain robotexts that appear to be coming from phone numbers that are unlikely to transmit text messages, including invalid, unallocated, or unused numbers, as well as “numbers that the subscriber to the number has self-identified as never sending text messages, and numbers that government agencies and other well-known entities identify as not used for texting.” Mobile service providers will also be required “to establish a point of contact for text senders, or have providers require their aggregator partners or blocking contractors to establish such a point of contact, which senders can use to inquire about blocked texts.”

The FCC’s report and order also include a further notice of proposed rulemaking, which seeks to implement additional protections to further prevent illegal text messages. The proposal would “require terminating providers to block texts from a sender after they are on notice from the Commission that the sender is sending illegal texts, to extend the National Do-Not-Call Registry’s protections to text messages, and to ban the practice of marketers purporting to have written consent for numerous parties to contact a consumer, based on one consent.”

Comments are due 30 days after publication in the Federal Register.

Agency Rule-Making & Guidance Federal Issues FCC Text Messages TCPA Consumer Protection Do Not Call Registry Robotext