Businesses using telemarketing need to be aware of a big change to the Telephone Consumer Protection Act (TCPA) that will impact how they obtain TCPA consent for marketing communications.
The FCC (Federal Communications Commission) has the authority to interpret the TCPA, and part of that interpretation now requires consumers to explicitly opt-in on a 1-to-1 basis for each company that wishes to contact them.
Starting on January 27, 2025, the FCC one-to-one consent rule comes into effect, requiring businesses to obtain express written consent for each individual communication channel. This means you must obtain separate consent for calls and texts, as well as other channels like email and fax.
Understanding the New Requirements
This new rule, with its January 27, 2025 effective date, replaces the previous practice where businesses could often rely on blanket consent for marketing across multiple channels.
Under the FCC one-to-one consent rule, if a customer agrees to receive promotional emails, that no longer automatically grants permission for telemarketing calls. This change impacts the very definition of “prior express written consent” under the TCPA.
Clarifying “Prior Express Written Consent”
Previously, consumers can give consent applicable to multiple sellers and businesses could often rely on broad consent obtained through methods like pre-checked boxes or consent buried deep within lengthy terms and conditions. This will no longer suffice.
“Clear and Conspicuous”
Here’s what won’t cut it:
- Pre-checked boxes: Consumers must actively choose to provide consent; it cannot be assumed.
- Bundled consent: Consent for telemarketing cannot be bundled with other agreements, such as accepting terms of service or signing up for a newsletter.
- Ambiguous language: Consent requests must clearly and specifically state or serve as proof that the individual agrees to receive telemarketing calls or texts from a particular company.
- Consent obtained for a different purpose: If a customer provides their phone number to track an order, this doesn’t imply consent to receive marketing calls.
Exemptions to the New Consent Rule for Telemarketing
The new rule has some exceptions. For example, if a company needs to call you with important information, like reminding you about an appointment or telling you your order is here, they might not need your written permission first. But, these calls can’t try to sell you anything.
Also, if you’re already a customer of a company, they might be able to call you about things related to your business with them, even without written permission. But, there are rules about this too, so it’s best to talk to a lawyer to be sure.
What Does This Mean?
The new rule mandates that consent must be obtained separately for each individual seller (e.g., company). In other words, a consumer must provide specific, written consent for each company that wishes to contact them. This change is aimed at closing the “lead generation loophole,” where broad consent forms previously allowed multiple companies to contact consumers without their clear understanding.
If you’re purchasing aggregated data, aged data, shared leads, or any other lead source and are using AI, SMS, or an ATDS (Automatic Telephone Dialing System) to contact consumers on their mobile devices, you’ll need explicit 1-to-1 written opt-in consent starting January 26, 2025.
ATDS / Dialer Concerns If you’re manually dialing leads and think you’re exempt from the ATDS rules, think again. Under the TCPA, an ATDS is defined as equipment that has the capacity:
- To store or produce telephone numbers to be called, using a random or sequential number generator; and
- To dial such numbers automatically.
The key here is “store or produce,” which doesn’t necessarily mean randomly generating numbers. Many modern dialers use some form of random or sequential number generation in their source code. Even if you’re manually dialing, if your system has this capability, it could be classified as an ATDS, making it subject to the TCPA.
Impact of the New Rule Starting January 27, 2025, any call made without explicit written 1-to-1 opt-in consent—regardless of when the lead was generated—will be illegal.
Why the Change?
The TCPA one-to-one consent rule aims to give consumers greater control over how businesses contact them, minimizing unwanted communications and potential harassment. It strengthens the consent requirement and places a greater burden on businesses to make sure they have proper permission before initiating calls and text messages.
What is Written Consent?
Written consent from the consumer means he has provided a clear, signed agreement, specifically authorizing a particular company to contact them. For an example of compliant consent language or the interaction that prompted the consent, see this template.
Practical Steps to Obtain Consent
If you need someone’s permission to call or text them, be upfront and honest about it. Tell them exactly what they’re agreeing to, like what kind of messages they’ll get (calls, texts) and how often. Give them separate choices for each.
For example, let them choose if they want to get calls, texts, or both. Make it easy for them to say “yes” by giving them different ways to do it, like online forms, texting a special number, or paper forms.
And always keep good records of who gave permission, when they did it, and how. This helps prove you’re following the rules.
Penalties for TCPA Violations
- Statutory Damages: $500 per violation. Each unsolicited call, text, or fax is a separate violation, which can add up quickly in large-scale operations.
- Treble Damages: If the court finds the violation was willful or knowing, damages can increase to $1,500 per violation.
- Class Action Lawsuits: TCPA violations often lead to class actions, with total damages potentially reaching millions of dollars.
- Injunctions: Courts can also issue injunctions to stop further violations, which could require you to change your business practices or halt certain communications entirely.
Does TCPA Apply to B2B?
Yes, the TCPA can apply to B2B communications, especially if you’re contacting cell phones. The law’s restrictions on telemarketing calls, autodialers, prerecorded messages, SMS, and artificial voices apply to calls made to residential lines and cell phones. Since many business owners use cell phones for business purposes, you must be diligent about scrubbing your contact lists against both the Do-Not-Call (DNC) list and cell phone databases to avoid unintentional TCPA violations.
Make sure you have written consent for any B2B communication that might involve a cell phone to stay compliant.
Technology and Compliance
Technology can help companies follow this new rule. There are special computer programs that keep track of who has given permission to be contacted. These programs can also help collect permission in different ways and keep records to show you’re doing things right. Other tools can help make sure you’re not calling people who don’t want to be called, like those on the Do-Not-Call list.
Staying Updated on TCPA Changes
These rules can change, so it’s important to stay up-to-date. You can check the website of the FCC, the government group that makes these rules. You can also read articles and newsletters about telemarketing and consumer protection. And it’s always a good idea to talk to a lawyer who knows about these laws.
What to Do Now
The January 27, 2025 effective date is rapidly approaching. Don’t wait until the last minute to comply with the FCC one-to-one consent rule. Take action now:
- Review your current consumer consent practices.
- Update your consent forms and processes.
- Implement a consent management system.
- Train your teams on the new requirements.
- Seek legal counsel to ensure compliance.
New Rules, New Opportunities
Starting January 27, 2025, companies need your clear permission before contacting you, so you can avoid unwanted calls or texts. This new rule gives you more control over who contacts you. Businesses must be upfront about what you’re agreeing to and make it easy to say “yes” or “no.”
Using the right tools and technology, companies can build trust with customers while following these new rules and complying with TCPA regulations. So, if your business uses telemarketing, prepare for these rule changes now to protect your business and keep your customers happy.
FAQs
1. What is the FCC one-to-one consent rule?
The FCC one-to-one consent rule requires businesses to get your express written permission for each way they want to contact you with marketing messages. This means separate permission for calls, texts, emails, etc. They can’t assume you’re okay with texts just because you said they could email you.
2. When does this rule go into effect?
The rule takes effect on January 27, 2025. After that date, companies need to have your proper consent before sending any marketing text messages or calls. This saves consumers from unwanted interactions.
3. Does this apply to all calls and texts?
No, there are some exceptions. Companies might not need your written permission for things like appointment reminders or delivery notifications. But these messages can’t include any marketing. There are also some rules about contacting existing customers. It’s best to talk to a lawyer if you’re not sure.
4. How can businesses get my consent the right way?
They must be clear about what you’re agreeing to, like what kind of messages you’ll get and how often. They should give you separate choices for each type of contact (calls, texts, etc.). They also need to make it easy for you to say “yes” (give consent) or “no” (not give consent).
5. What happens if companies don’t follow this rule?
They can face big fines! It’s important for companies to take this seriously and make sure they’re following the rules.
