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TCPA One-to-One Consent Rule

Q&A Compliance Courier

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Q&A:  Here’s a question that a Wisconsin credit union recently asked The League’s Legal Affairs team, along with our answer. Do you have a compliance question? Contact The League’s Compliance Hotline at (608) 640-4050 or email. 
 
Q:  The TCPA One-to-One Consent rule is effective January 2025.  How would the credit union comply with this amendment? 
 
A:  The Telephone Consumer Protection Act (TCPA) and its consent rules are complex.  This One-to-One Consent Rule, which the Federal Communications Commission (FCC) adopted in December, does not take effect immediately. It becomes effective 12 months after publication in the Federal Register.  Additionally, if the rule is challenged in court, that could further delay (or even prevent) the rule’s implementation. Still, it’s good to be proactive and take steps sooner rather than later to limit the credit union’s exposure to risk under the TCPA. 
 
In addition to the new “One-to-One” consent requirement for autodialed telemarketing texts and phone calls, the rule also codifies that the National Do-Not-Call (DNC) Registry’s protections extend to text messages, and it requires a limited text blocking mandate.  I’ll summarize each rule below.
 
The new regulations contain rolling effective dates for each specific rule change: 

  • The amendment to the Do-Not-Call Registry Rule for text messages will be effective on March 26, 2024.
  • The Text Blocking Rule will be effective on July 24, 2024.
  • The One-to-One Consent Rule will be effective on January 27, 2025.

Do-Not-Call Registry Rule

The FCC confirmed that Do-Not-Call list protections apply to text messages. “Texters must have the consumer’s prior express invitation or permission before sending a marketing text to a wireless number in the DNC Registry.” This reiterates the FCC’s policy that texts are equivalent to calls for TCPA purposes, and consequently means that if a consumer revokes his or her consent to receive texts, a company would be required to add that number to its internal do not call list.  


Text Blocking Rule

The new rules require mobile wireless providers to block certain text messages following notification from the FCC, which is encouraging providers to require consumer opt in for texts originating from email addresses. 


One-to-One Consent Rule

The current TCPA rules require callers (including credit unions) to obtain a consumer’s prior written consent before making any prerecorded telemarketing calls to residential phone numbers, or autodialed (i.e., using an automatic telephone dialing system) or prerecorded telemarketing calls or text messages to wireless numbers.  While the TCPA currently defines “prior express written consent,” it is silent on the extent to which consent can be obtained for more than one caller at the same time. The FCC determined that this “lead generator loophole” must be closed by amending the definition of prior express written consent to require that consent “clearly and conspicuously authorizes no more than one identifier seller to deliver or cause to be delivered to the person called or texted advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice.”
 
This One-to-One Consent is the most significant change adopted in the rule. This new requirement requires that in order to send an autodialed telemarketing text or phone call, the texter/caller must first obtain a consumer’s prior express written consent specific to the company that will place such a text or call to the consumer’s cell phone – in other words, a 1:1 consent. The FCC’s new TCPA restrictions described apply only to autodialed and prerecorded calls to wireless phone numbers.
 
The definition of “prior express consent” in the TCPA rules now says:
 

The term prior express written consent means an agreement, in writing, that bears the signature of the person called that clearly and conspicuously authorizes no more than one identified seller to deliver or cause to be delivered the person called advertisements or telemarketing messages using an automatic telephone dialing system or made using an artificial or prerecorded voice.  Calls must be logically and topically associated with the interaction that prompted the consent and the agreement must identify the telephone number to which the signatory authorizes such advertisements or telemarking messages to be delivered. 
 

In addition to the requirement for One-to-One Consent, the new rule requires the consent to come after a clear and conspicuous disclosure to the consumer that he or she will receive robotexts and/or robocalls from the seller.  It also requires robotexts and robocalls that result from consumer consent obtained on comparison shopping websites to be logically and topically related to that website.  The FCC states by way of example, that “a consumer giving consent on a car loan comparison shopping website does not consent to get robotexts or robocalls about loan consolidation.”
 
American’s Credit Unions also sent out a notice to credit unions on this new rule reiterating:
 

The compliance burden will be on the caller/texter to prove that they have consent that satisfies the FCC’s amended TCPA regulations – not the lead generator website. Therefore, credit unions using these services (web-based or otherwise) should ensure that vendors are updating their policies, procedures, practices, and agreements to comply with the new requirements by next January’s effective date.
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In a nutshell, the new rule requires:  

  • Businesses to obtain a consumer’s prior express written consent separately for each marketing pattern, a single consent to enable multiple marketing partners to send robocalls or robotexts is no longer valid.
  • The consumer must receive a clear and conspicuous disclosure that he/she will receive robotexts and/or robocalls from the named marketing partner.
  • The content of the robotexts and robocalls must be “logically and topically associated with the interaction that prompted the consent.”
  • The burden of proof for evidencing consent is on the texter or caller.

The FCC will continue to make efforts to clarify its interpretation of the TCPA.  As a result, we will have to keep an eye out for additional rulemaking activity by the FCC in 2024
 
You can find more information on the TCPA in The League’s ii Release No. 0162 – Telemarketing and Related Consumer Protections.  We will update the ii Release as the new rules go into effect.

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