Webinars

Understanding the FCC Rulings on Explicit Consent: What you Need to Know?

The first session of our webinar series aims to provide a deep dive into the recent TCPA/FCC rulings on explicit consent. With guest speakers, Michele Shuster and Eli Schwarz, this session offers legal insights on the potential impact of these changes


It can be challenging to navigate the complexities of compliance in customer acquisition, especially with the constantly changing regulations. In this blog, based on the webinar sequence ‘Navigating FCC Regulations on Explicit Consent’ that we recently organized together with Verisk Marketing Solutions, we aim to provide a clear and concise overview of the recent changes to the TCPA regulations, specifically focusing on the shift from implied consent to one-to-one consent.

In the first session of our series, we brought in legal expert Michele Shuster to dive deep into the rulings from a legal perspective. Her experience with the Consumer Consent Council and more than two decades of experience in the consumer protection arena make her one of the most powerful voices in this space. 

There have been mixed sentiments about this change in the industry. Most agree that this will improve consumer experiences, but a large majority are still unsure about the impact of these rulings on their business operations. 

Our take is that these changes are new to us, but the sky is certainly not falling on customer acquisition. We have been through a similar update in the past with the TCPA regulations update in 2013, where our industry was nimble and quick enough to navigate them and we don't expect anything different this time. We remain committed to PX being the tailwind of change with these rulings and actually providing a technological solution that brands trust. 

TCPA Regulations Update 2013 vs 2023

Before delving into the changes, let's take a moment to understand the current state of TCPA regulations. Previously, brands and marketers primarily operated with implied consent, meaning that when a consumer submitted a form with their phone number, it was assumed they were giving consent to be contacted. 

However, in 2013, regulations changed, requiring prior express written consent for all telemarketing calls. This shift resulted in the inclusion of TCPA disclaimers on lead forms and companies needing to prove they obtained consent from consumers. The burden of proof shifted to the brands obtaining consent from the consumer.  Gradually, we saw partner forms being hyperlinked with hundreds of partners who would be allowed to contact the consumer, resulting in the consumer sometimes ultimately receiving dozens of phone calls for multiple products and services. It leads to consumers lacking visibility on who will contact them, a bad consumer experience, and a lack of data privacy.

The new FCC ruling proposed in December 2023 significantly changes TCPA regulations, primarily focusing on explicit, one-to-one consent. 

Brands that autodial or use pre-recorded messages to reach consumers, now require explicit one-to-one consent to the seller(s) who will contact them. The calls the consumer receives should be “logically and topically” related to the content of the original website to which they consented. 

Elements of prior express written consent- Consent received should be explicit to each brand, and include a clear disclosure that the purpose of this contact would be telemarketing, disclose the telephone number that the consumer is consenting to be called, consent is not required as a condition of purchase. 

Expectations and Impact

As with any regulatory change, there will be challenges and opportunities. It is essential to prepare for these changes in advance to ensure compliance and maintain a competitive edge in the industry. Here are a few expectations and potential impacts:

  • An organic shift from shared to an exclusive / branded lead: While shared leads have been common practice and are still very viable within this ruling, the emphasis on one-to-one consent will shift lead forms to move more to exclusive leads or branded leads.

  • Prerecorded messages: Pre-recorded messages, even using one's own voice, require prior express written consent for telemarketing under TCPA. This underscores a significant compliance risk, highlighted by actions from multiple state Attorneys General. Even with permission to use distinctive voices (like celebrity impersonations), these messages are considered pre-recorded and necessitate explicit consent. 

  • Shift towards Manual Dialing: Manual dialing may become more prevalent as brands move away from automated dialing systems.

  • Innovation in Technology: This is a great opportunity for the industry to actually come together and collaborate to innovate and develop technological solutions to support different scenarios of consent capture and consent verification. PX is already piloting its solution, Brand Explicit Consent.

  • Centralization: Centralization facilitates better oversight and control, ensuring compliance across all vendor interactions and customer acquisition processes. It simplifies the complexity of managing various consent forms and legal requirements, making it easier for enterprise buyers to navigate the regulatory landscape. Centralization also aids in standardizing procedures for obtaining and documenting consent, crucial for defending against potential legal challenges.

  • Focus on Email Marketing: Companies may shift their focus towards email marketing as an alternative way to reach and follow up with prospects. However, it is crucial to ensure compliance with the CAN-SPAM Act.

FAQs

Can you use your own voice as a pre-recorded message? Using your own voice as a pre-recorded message for telemarketing calls requires prior express written consent under the TCPA and equivalent state laws. This is because regulators consider any pre-recorded voice message, even in one's own voice, to fall under the category requiring consent. 

Can you use AI instead of a pre-recording message? Using AI for messaging requires the same legal consent as pre-recorded messages. 

Is explicit consent required in manual dialing and texting? Manual dialing will still be allowed and won’t require explicit consent, although TCPA consent will still be required, as since 2013. Texting, on the other hand, will require explicit consent. 

Exceptions for EBRs (existing business relations) Existing Business Relationships (EBRs) offer exceptions to some consent requirements. If a customer has previously engaged with your business—through a purchase or inquiry, for instance—you might not need new express consent to contact them for a limited time. This relationship allows for more flexibility in communications but still requires adherence to specific legal guidelines to ensure compliance.

Conclusion

As the industry continues to evolve, it is essential to stay informed, seek legal counsel, and adapt your practices accordingly. By understanding and embracing these changes, you can ensure your company is well-positioned for success in the ever-changing customer acquisition landscape. The deadline for implementing these changes is January 27, 2025, giving companies ample time to prepare and adapt to the new regulations.

The approach that we followed for this webinar series was to break down the facts and provide practical, clear explanations with solutions in hand. We want to educate brands and companies and help identify opportunities to work together to offer technical and automated solutions so it becomes easy for the industry to navigate this. 

Are you curious about the full webinar sequence on Navigating FCC Regulations on Explicit Consent hosted by PX and Verisk Marketing Solutions? 

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