Just before the end of 2023, the FCC made changes to their newly passed TCPA consent rules. We now have twelve months to come into compliance before the rules take effect. The FCC is soliciting comment for the regulatory impact on small businesses specifically.
Noteworthy Changes
The FCC said there would be a large update in consent to close the lead generation loophole in the form of language. There are two noteworthy changes in the final proposal.
- $Amended language now makes consent one-to-one. This means consumers must consent to each party contacting them.
- $Calls and texts must “logically and topically” be associated with the consent prompt.
“Logical and topical” implies content, association, and interaction, which the amendment doesn’t make very clear. This language will prove to be difficult for companies to interpret as businesses navigate new changes.
What does the rule impact?
The new rule will impact outbound marketing leads (autodialer, pre-recorded voice calls), multi-vertical leads (logical and topical), ping post models, co-reg models, marketplace leads, and aged leads.
Right now, the new consent rules only affect “regulated technology,” meaning ATDS, autodialers, robotexts, prerecorded messages, and artificial or AI voices. If the regulators get their way, the same one-to-one consent standard will also apply (maybe even retroactively) to the manual, live calling of numbers on the DNC.
What are the new State Changes?
Maryland adopted a new telemarketing law, modeling after Oklahoma and Florida amendments.
Maryland has expanded its definition of an autodialer to include a wide range of preview/click-to-call dialers that guide agents in selecting the next number to call. The local calling curfew has been adjusted to 8am-8pm from the previous 8am-9pm, and telemarketers are restricted to making a maximum of three calls within a 24-hour timeframe.
Several state data privacy laws that were passed last year have recently come into effect. Utah and Virginia’s new data laws became effective on December 31st and January 1st, respectively. The data laws in Colorado, Connecticut, Oregon, and Texas will take effect on July 1, 2024.
California’s CPRA, which amended the prior CCPA through Proposition 24, became fully operational on January 1st. There are now five states with similar laws, and eight more that will come into effect in the near future.
Differing laws across state lines presents a challenge, with the biggest being the inconsistency in how to get opt-in consent to process sensitive personal information.
Fortunately, California remains the only state that grants consumers the right to sue through a private action. In most states, enforcement of these rules is left to local government, with some states offering a notice-and-cure provision. It’s important to update your privacy policies and practices accordingly.
Predictions
We predict a shift in the industry to inbound. Lead quality will increase as intent increases. First-party relationships will become much more valuable as third-party cookies will phase out. We will see more efficient email and direct mail marketing channels with multi-modal approaches.
The future is in transparency and thinking of the consumer perspective first as we move toward one-to-one consent. Businesses should update consent language and document/certify all transactions for record keeping.
While adaptation is necessary, a full year has been given to do so. We’ve been here before. The passing of the TCPA or the DNC list of 2013 didn’t destroy telemarketing. For now, calling or texting manually without autodialers or recording is unaffected.
Now is a time for innovation, and it will be an exciting time to see how and what brilliant business minds will create and produce. The future is a focus on consent and the consumer, and Boss Leads is trail-blazing strategies to create communities that WANT to interact with businesses.
This information is not intended to serve as legal advice. Nor is it intended to act as compliance advice specific to the processes of any specific company. Application of compliance laws is a company-specific endeavor. We recommend that you contact compliance counsel to discuss the application of information found herein to your operations.