Last week, the Federal Communications Commission (FCC) issued a Notice of Proposed Rulemaking proposing to “ban the practice of obtaining a single consumer consent as grounds for delivering calls and text messages from multiple marketers on subjects beyond the scope of the original consent.”
According to the FCC, the proposed rule’s intent is to prevent lead generators from obtaining consent to receive calls and texts from multiple “partner companies” identified through a hyperlink rather than on the same page where consent is obtained. Implementing this rule could drastically change the way lead generators obtain consent for marketing calls and texts under the Telephone Consumer Protection Act (TCPA).
The FCC provided background examples of various insurance comparison shopping websites that invite consumers to input information through lead forms and seek consent for calls and texts from insurance companies and others. Those companies, often called “partner companies” or “marketing partners,” are listed in a hyperlink and displayed on another web page only when consumers click the link.
This practice is customary in the lead generation industry. Indeed, in December 2022, the FCC issued a ruling that a lead generation website did not disclose “clearly and conspicuously” the entities from which consumers agreed to receive calls and texts. In that case, the lead form stated that consumers agreed to receive communications from “marketing partners” that hyperlinked to a second website with a list of over 5,000 names. The FCC concluded that “listing more than 5,000 ‘marketing partners’ on a secondary website is not sufficient to demonstrate that the called parties consented to the calls from any one of these ‘marketing partners.'”
Now the FCC seeks comment on whether and how it should amend consent requirements for TCPA purposes, including whether consent should be deemed valid only for callers logically and topically associated with the website that solicits consent and whose names are clearly disclosed on the same web page. The FCC will also address a request for a ruling that prior express consent to receive calls or texts must be made directly to one entity at a time. Honoring this request could mean a huge shift not only for lead generators but also for franchises and other companies that operate through multiple business lines.
The use of hyperlinks in providing disclosures and obtaining consent is already under scrutiny by various courts, and by the Federal Trade Commission, which is evaluating its Dot Com Disclosures to determine whether and when hyperlinks can adequately convey material information.
Given the potential impact of the FCC’s determination on lead generators and companies alike, the industry should take heed. If you are interested in submitting comments or learning more about how the FCC’s notice could affect your business, please contact the authors.