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New Year, New One-To-One TCPA Consent Requirements for ...
troutman.com
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New Rules for Lead Generation “The TCPA further prohibits telephone solicitations to telephone numbers on the Do Not Call Registry without the consumer’s prior express invitation or permission or unless the caller has an established business relationship with the consumer.” Under current law, comparison shopping websites obtain PEWC by having consumers enter into agreements in which the consumer consents to receive telemarketing calls for the companies on a list of marketing partners. These websites clearly and conspicuously disclose the list of companies – typically through a hyperlink highlighted by using different color font to put a reasonable consumer on notice of the terms to which the customer is agreeing. Courts around the country have consistently upheld the enforceability of consumers’ consent when the consumers have visited comparison shopping websites and clicked on a button agreeing to language stating that by clicking the button the consumer is consenting to be contacted by the marketing partners using an ATDS or artificial/prerecorded messages. These courts have applied well-settled law enforcing internet click-wrap agreements. The FCC’s new requirements are an attempt to rewrite internet contract law in the name of protecting consumers from themselves.
New Rules for Lead Generation “The TCPA prohibits calls, including telemarketing calls, to wireless telephone numbers using an automatic telephone dialing system (ATDS) or a prerecorded or artificial voice messages without the prior express written consent (PEWC) of the consumer.[1]” Under current law, comparison shopping websites obtain PEWC by having consumers enter into agreements in which the consumer consents to receive telemarketing calls for the companies on a list of marketing partners. These websites clearly and conspicuously disclose the list of companies – typically through a hyperlink highlighted by using different color font to put a reasonable consumer on notice of the terms to which the customer is agreeing. Courts around the country have consistently upheld the enforceability of consumers’ consent when the consumers have visited comparison shopping websites and clicked on a button agreeing to language stating that by clicking the button the consumer is consenting to be contacted by the marketing partners using an ATDS or artificial/prerecorded messages. These courts have applied well-settled law enforcing internet click-wrap agreements. The FCC’s new requirements are an attempt to rewrite internet contract law in the name of protecting consumers from themselves.
New Rules for Lead Generation “The TCPA also prohibits telemarketing calls to residential telephone numbers using a prerecorded or artificial voice message without PEWC.” Under current law, comparison shopping websites obtain PEWC by having consumers enter into agreements in which the consumer consents to receive telemarketing calls for the companies on a list of marketing partners. These websites clearly and conspicuously disclose the list of companies – typically through a hyperlink highlighted by using different color font to put a reasonable consumer on notice of the terms to which the customer is agreeing. Courts around the country have consistently upheld the enforceability of consumers’ consent when the consumers have visited comparison shopping websites and clicked on a button agreeing to language stating that by clicking the button the consumer is consenting to be contacted by the marketing partners using an ATDS or artificial/prerecorded messages. These courts have applied well-settled law enforcing internet click-wrap agreements. The FCC’s new requirements are an attempt to rewrite internet contract law in the name of protecting consumers from themselves.
New Rules for Lead Generation “The FCC has interpreted “calls” to include text messages.[2]” Under current law, comparison shopping websites obtain PEWC by having consumers enter into agreements in which the consumer consents to receive telemarketing calls for the companies on a list of marketing partners. These websites clearly and conspicuously disclose the list of companies – typically through a hyperlink highlighted by using different color font to put a reasonable consumer on notice of the terms to which the customer is agreeing. Courts around the country have consistently upheld the enforceability of consumers’ consent when the consumers have visited comparison shopping websites and clicked on a button agreeing to language stating that by clicking the button the consumer is consenting to be contacted by the marketing partners using an ATDS or artificial/prerecorded messages. These courts have applied well-settled law enforcing internet click-wrap agreements. The FCC’s new requirements are an attempt to rewrite internet contract law in the name of protecting consumers from themselves.
Compliance Going Forward “Lead buyers will need to increase their vigilance to make sure that any lead sold to them provides specific consent to the lead buyer/caller.” 1. Manually Dialed Calls
4. Websites Design – Auction Prior to Consent Page “The downside is that the lead could only be sold to that company.” 5. Retention of Proof for Valid PEWC
Order, ¶ 49 (footnote omitted). Reading the sentence in context demonstrates that the FCC was reminding callers that the TCPA imposes strict liability. Reasonable reliance on representations of consumer consent from vendors is not an affirmative defense to a TCPA violation. The next sentence re-affirms that consent must come from the consumer, not the vendor. The FCC also reminds callers that “fake leads” fabricated by lead vendors are not valid PEWC. “Lead buyers should consider requiring a copy of the consent language be provided with the other lead data.” The FCC’s statement that “the consumer’s consent is not transferrable or subject to sale to another caller” if taken literally would be inconsistent with and contradict other sections of the Order. As explained above, the Order discusses various ways that websites and lead generators can obtain PEWC for more than one seller at a time. Reading this sentence in context and in the broader language of the Order should lead courts to conclusion that the FCC was simply re-affirming existing law stating that consent to calls from one seller does not transfer to other sellers. Even under current law, if a company is not included on the list of marketing partners, that company does not have PEWC to call the consumer using an ATDS or artificial/prerecorded messages. Paragraph 49 of the Order is in the section entitled “Burden of Proof for Valid Consent.” Courts must read this language in a manner that is consistent with the rest of the Order, including specifically the sections addressing “One-to-One Consent” (¶¶ 31-34) and “Preserving Comparison Shopping and Protecting the Needs of Small Businesses” (¶¶ 37-45), both of which expressly state that comparison shopping websites can obtain one-to-one consent for multiple sellers on a single webform or during a call to the consumer.