The FCC’s One-to-One Consent Rule for Autodialed & Prerecorded/Artificial Voice Calls
This article addresses a significant change the FCC has made to the specific form of consumer consent callers will need to make autodialed, prerecorded, or artificial-voice telemarketing or advertising calls to cell phones and the other types of phone lines covered in Section 227(b) of the Telephone Consumer Protection Act, or TCPA. Beginning on January 27, 2025, callers making these specific types of calls must be sure that the consumer consent they have complies with the FCC’s new heightened written-consent requirements.
This new “one-to-one” rule is meant to close what the FCC called the “lead generator loophole,” under which online marketers and other comparison-shopping sites would secure a consumer’s consent for multiple parties to call him or her with these regulated technologies. This existing practice has secured the called parties’ “prior express written consent” under the FCC’s consent rule that took effect back in 2015. Unsatisfied with its own rule, the FCC has now further restricted the contractual terms under which you can secure a consumer’s consent to receive telemarketing calls or texts through an autodialer or with prerecorded or artificial-voice technology.
Background
As we’ve covered in another blog, The Two Pillars of TCPA Compliance: Protecting Your Business, the TCPA covers a variety of calling practices. The TCPA is not just one thing; it has nuanced rules for each section. One section covers faxes (still popular in the healthcare and B2B circles). Another section covers sales calls (so-called “telephone solicitations”) to residential phone numbers registered on the National Do Not Call Registry. The FCC’s new one-to-one consent rule does not apply to those subsections of the TCPA.
The TCPA section we’re covering here—Section 227(b)—addresses how one can use certain regulated technologies, namely autodialers and prerecorded and artificial voice calls, to specific types of phone lines, most notably cell phones. (If you haven’t read our blog on the autodialer rule specifically, you can find it here.)
To make those calls, the TCPA requires “prior express consent.” Congress did not define “prior express consent.” And for the first 20+ years after the TCPA was enacted, neither did the FCC. The FCC and the courts ruled that if you gave your phone number to a given company, they had consent to call you on it, even with the types of technologies regulated by Section 227(b) (i.e., autodialed and prerecorded/artificial voice to cell phones and certain other types of phone lines). But in 2013, the FCC decided that Americans were getting too many autodialed or prerecorded/artificial voice telemarketing calls on their cell phones from companies to which they had given their number, so it created a new “prior express written consent” rule that went into effect in 2015. Under that rule in place today, you can make these types of covered calls as long as the consumer gave clear and conspicuous written consent to receive these types of calls at the phone number they provided. (There are a couple of other requirements, such as having the consumer acknowledge that they don’t have to give their consent to get those types of calls or texts just to buy something from the party they’re giving the consent to.)
The FCC’s New One-to-One Consent Rule
The FCC’s prior express written consent rule – 47 C.F.R. § 64.1200(f)(9) – isn’t moving. To close its “loophole,” the FCC has added two new restrictions to the existing written consent rule that restrict who can get consent (just one seller) and what they can use that consent for (just calls/texts that are “logically and topically related” to what the consent was about).
As you’ll see here, the FCC added the bolded text so that acceptable written consent can now only authorize “one identified seller,” who can then only make covered calls and texts that are “logically and topically associated” with the website or interaction in which the consumer gave this consent:
The term prior express written consent means an agreement, in writing, that bears the signature of the person called or texted that clearly and conspicuously authorizes no more than one identified seller to deliver or cause to be delivered to the person called or texted advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice. Calls and texts must be logically and topically associated with the interaction that prompted the consent and the agreement must identify the telephone number to which the signatory authorizes such advertisements or telemarketing messages to be delivered.
Again, your prerecorded/artificial voice and autodialed (if any) telemarketing calls from January 27, 2025 forward must be made with this new form of consent. We urge you to carefully review your written consent to make these types of calls, and if you use Readymode to make these types of calls, we will be contacting you about your compliance with this new one-to-one consent rule well in advance of the effective date.
This is not legal advice. You should consult a qualified attorney for your compliance needs.
Joe Bowser
Joe Bowser is a partner at Roth Jackson. He has been practicing communications and marketing law for two decades. He advises and defends calling and SMS platform providers (like Readymode), carriers/VoIP providers, and heavy users of those services in their wide range of compliance needs. In his spare time, you can find him taking his boys to their sports, getting in a workout of his own, or catching an Arsenal match.
