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What businesses should know about consent rules when calling ...
legaldive.com
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Senosiain is an associate and Rollins is a shareholder at Gunster. Views are the authors’ own. “One such rule is that businesses must obtain express written consent prior to sending text messages to consumers, if they are using an automated telephone dialing system or making calls using an artificial or pre-recorded voice, including the use of AI bots.” The TCPA also provides that businesses may not call or text consumers on the federal Do Not Call List unless prior express consent is given. Even basic telemarketing calls and text messages require prior express consent. Violation of the statute can trigger liability for up to $1,500 per call or text message sent.
Lead generation “Many companies use lead generators which gather consumer consents for multiple businesses and then provide the companies with consent and contact information for those potential consumers.” However, in 2023, the Federal Communications Commission updated its TCPA rules requiring “one-to-one consent” which was to become effective Jan. 27, 2025.
The TCPA also provides that businesses may not call or text consumers on the federal Do Not Call List unless prior express consent is given. Even basic telemarketing calls and text messages require prior express consent. Violation of the statute can trigger liability for up to $1,500 per call or text message sent. “Additionally, many states have their own version of the TCPA, deemed “mini-TCPAs,” that require compliance for all businesses who make calls to consumer-residents in that state, regardless of where the business is domiciled.” Lead generation
Lead generation “Many companies use lead generators which gather consumer consents for multiple businesses and then provide the companies with consent and contact information for those potential consumers.” However, in 2023, the Federal Communications Commission updated its TCPA rules requiring “one-to-one consent” which was to become effective Jan. 27, 2025.
It is unclear whether the FCC will revise its 2023 Order to comply with the Eleventh Circuit’s decision. In order to be prepared for this rule to come into effect, and in an abundance of caution, businesses who use lead generators to source potential consumers’ consent should ascertain that the lead generators are obtaining individual, one-to-one consent. “Further, in addition to storing consumer contact information, businesses must retain the consent forms, information as to when consent was given, and through whom.” The TCPA requires prior express consent, and in many cases, prior express written consent, for calls and text messages made to prospective consumers. Regardless of any changes to the TCPA, the FTSA still requires that businesses obtain prior express written consent when making unsolicited telephone calls (including sending text messages) using an automated system. And lastly, to further protect your business, the consent form should have robust terms of service, including a class action waiver.
Abundance of caution “In order to be prepared for this rule to come into effect, and in an abundance of caution, businesses who use lead generators to source potential consumers’ consent should ascertain that the lead generators are obtaining individual, one-to-one consent.” Businesses should also only contact consumers who provide this consent for telemarketing that is logically and topically associated with that which the consent was provided. Further, in addition to storing consumer contact information, businesses must retain the consent forms, information as to when consent was given, and through whom. Even businesses that do not use lead generators to obtain consent should continue to review their consent practices to ensure strict compliance with the TCPA and mini-TCPAs.