Introduction
There’s significant confusion surrounding the use of AI, SMS, auto-dialers, and the new changes set to take effect on January 27th, 2025, under the TCPA (Telephone Consumer Protection Act). This guide aims to clarify these changes and their implications for businesses.
Background
The FCC (Federal Communications Commission) has the authority to interpret the TCPA. On January 26, 2024, the FCC published revisions to the TCPA in the Federal Register, which will become effective on January 27, 2025. These revisions introduce new requirements for obtaining consumer consent.
Key Changes
1. One-to-One Opt-In Consent
The new rule mandates that Prior Express Written Consent (PEWC) must be obtained on a one-to-one basis for each individual seller or company. This change closes the “lead generation loophole,” where broad consent forms previously allowed multiple companies to contact consumers without their clear understanding.
Example:
- Old method: A consumer fills out a single form consenting to receive calls from “Company A and its marketing partners.”
- New method: The consumer must fill out separate consent forms for Company A, Company B, Company C, etc., if all wish to contact them.
2. Topical Relevance
Calls and texts must be logically and topically related to the website where the consumer provided consent.
Example:
- Compliant: A consumer provides consent on a car dealership’s website and receives calls about car sales or service.
- Non-compliant: The same consumer receives calls about unrelated products like life insurance or home renovations.
3. Application to Texts
The FCC has explicitly codified that the TCPA’s Do Not Call (DNC) rules apply to text messages as well as voice calls.
Impact on Different Types of Communication

Automated Systems (ATDS)
If you’re 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 27, 2025.
Technical Definition of ATDS
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.
Important Note: 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.
Manual Dialing
If you’re manually dialing leads, you might think you’re exempt from the ATDS rules. However, caution is advised. If your system has the capacity to store or produce numbers using a random or sequential number generator, it could still be classified as an ATDS.
B2B Communications
The TCPA can apply to B2B communications, especially when contacting cell phones. Many business owners use cell phones for business purposes, so it’s crucial to:
- Scrub your contact lists against the Do-Not-Call (DNC) list
- Check against cell phone databases
- Obtain written consent for any B2B communication that might involve a cell phone
Obtaining Proper Consent
What is Written Consent?
Written consent means the consumer has provided a clear, signed agreement, specifically authorizing a particular company to contact them. The consent must be unambiguous, and the consumer must receive a clear and conspicuous disclosure.
Example of Compliant Consent Language: “By signing below, I authorize [Company Name] to contact me by phone or text message at the number provided, including through the use of automated technology, about [specific topic]. I understand that I am not required to provide this consent as a condition of purchase.”
Penalties for TCPA Violations
- Statutory Damages: $500 per violation. Each unsolicited call, text, or fax is a separate violation.
- 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 issue injunctions to stop further violations, which could require changes to business practices or halt certain communications entirely.
Best Practices for Compliance
- Update all consent forms to be specific to each company or brand.
- Ensure your dialing systems are compliant with the latest ATDS definitions.
- Implement robust record-keeping practices to document all consents obtained.
- Regularly train staff on TCPA compliance and updates.
- Conduct periodic audits of your communication practices.
Further Resources
For more detailed information, consider consulting the following resources:
- FCC’s Official TCPA Page
- Electronic Code of Federal Regulations – TCPA
- National Association of Attorneys General – TCPA Information
Remember, while this guide provides an overview, TCPA compliance can be complex. It’s advisable to consult with legal counsel to ensure full compliance with these new regulations.