FCC Closes the Lead Generator Loophole, Are You Compliant?

Coming soon to a lead provider near you, new regulations that require “one-to-one” consent. The loophole that deBanked warned about last November is now officially scheduled to close on March 26. To revisit the heart of what’s changing, we republish the following:

“Lead-generated communications are a large percentage of unwanted calls and texts and often rely on flimsy claims of consent to bombard consumers with unwanted robocalls and robotexts,” the FCC said. As such they’re now requiring one-to-one consent.

First, the one-to-one consent must come after a clear and conspicuous disclosure to the consenting consumer that they will get robotexts and/or robocalls from the seller. “Clear and conspicuous” means notice that would be apparent to a reasonable consumer. In addition, if compliance with the federal Electronic Signatures in Global and National Commerce Act (the E-Sign Act) is required for the consumer’s signature, then all the elements of ESign must be present.”

Second, we adopt our proposal that robotexts and robocalls that result from consumer consent obtained on comparison shopping websites must be logically and topically related to that website. Thus, for example, a consumer giving consent on a car loan comparison shopping website does not consent to get robotexts or robocalls about loan consolidation.

Fortunately, the FCC spells out an example of what might be acceptable as one-to-one consent for a lead generator.

For instance, the website may offer a consumer a check box list that allows the consumer to specifically choose each individual seller that they wish to hear from. Alternatively, the comparison shopping website may offer the consumer a clickthrough link to a specific business so that the business itself may gather express written consent from the consumer directly. Our rule does not prohibit comparison shopping websites from obtaining leads through valid consent and provides multiple opportunities for responsible comparison shopping websites to obtain leads for potential callers.”

The FCC has since published the new rules in the Federal Register. There are two components of it that have a delayed effective date, one being July 24, 2024 and the other being January 27, 2025. The rest goes into effect this March 26, however.

For questions about whether or not this will affect you, please consult with an attorney.