Do you generate leads either for sale or for internal use? Are you an affiliate? Are you a lead buyer? Are you a lead aggregator? Every single one of you needs to read this document from the FCC. This ruling is such a big deal because this is the TCPA. It is not the FCC that is going to come after you. The professional TCPA litigators were just handed an early Christmas present. Lead buyers who make calls or send text messages breaking these new rules will eventually get crushed in litigation, and if you think you are immune because you are a lead seller, you will not have anyone to sell leads to if this is not dealt with correctly.
If you want the Cliff Notes version of this, I will not give it to you. Well, I will, but you really should read the whole thing. I will make some points, but if you are serious about being in business this time next year, just read the darn thing. This is important.
The FCC is trying to combat robocalls and spam texts. Consumers are getting killed with them, and whether you agree or not with the FCC's opinion on lead generators being the cause, it honestly does not matter. This is where we are currently, and we must find a way forward. I believe the path ahead can be better for consumers by getting fewer calls, better for lead buyers with higher quality leads, and better for lead sellers, which drives lead prices up as quality increases. Sadly, this will not be rosy for everyone, which I will get to.
I will be at the DNC.com TCPA show in Florida next week and expect this topic to be covered repeatedly. You can still go to this show if you have time. If not, you must make sure you have or find an attorney who really understands TCPA. I am not a lawyer or your advisor. These are my interpretations of what I have read and been told.
Timeline
The FCC order, published on November 22, 2023, will be voted on at the FCC's December meeting. People are not expecting changes. Once voted on, it will be published in the Federal Register, and after that, the FCC is giving us all six months to comply. It will come into effect as early as August or as late as November.
Big Changes
I will review the document in order of the most significant points I see.
"25. We adopt our proposal to codify the National DNC Registry's existing protections to text messages. Texters must have the consumer's prior express invitation or permission before sending a marketing text to a wireless number in the DNC Registry."
Text messages are now the same as phone calls regarding the DNC. This seems straightforward, but you really have to read 29 to understand what this means for your text messaging.
"29. We now make it unequivocally clear that texters and callers must obtain a consumer's prior express written consent from a single seller at a time on the comparison shopping websites that often are the source of lead generation, thus closing the lead generator loophole. Lead-generated communications are a large percentage of unwanted calls and texts and often rely on flimsy claims of consent to bombard consumers with unwanted robocalls and robotexts. While many comparison shopping websites that involve lead generation (i.e., websites that generate a consumer "lead" for a seller) benefit consumers by enabling them to quickly compare goods and services and discover new sellers, the record is clear that new protections are necessary to stop abuse of our consent requirements. We also require that the consent must be in response to a clear and conspicuous disclosure to the consumer and the content of the ensuing robotexts and robocalls must be logically and topically associated with the website where the consumer gave consent."
When the FCC writes "unequivocally clear," you really need to believe what they are writing. I read this as you must present the end seller's information to the lead before you send the lead to that seller. I also read this as the lead must proactively select the seller(s) they want to be contacted by, and nobody else has the consent to call the lead. No automatic matching. No reprocessing. No selling aged leads unless the consumer agrees to be contacted by those sellers by selecting those sellers one by one. I think this means the lead must check the box, and that's that.
"30. One-to-One Consent. As an initial matter, we agree with commenters that we must take action to close the lead generator loophole and stop consent abuse by unscrupulous robotexters and robocallers. And we agree with commenters that requiring one-to-one consent obtained with a clear and conspicuous disclosure to the consumer is the way to do so. Requiring one-to-one consent will end the current practice of consumers receiving robocalls and robotexts from tens, or hundreds, of sellers – numbers that most reasonable consumers would not expect to receive. "
They are making the same point repeatedly, which is a good thing because at least people understand the rules.
Point 31 says the old "marketing partners" link showing who can call or text the lead is gone. One-to-one consent is required. The list of thousands of buyers will not be allowed. The lead must select, on a one-to-one basis, the companies they want to work with.
"32. In adopting our requirement, we reject QuinStreet's proposal to permit consent to a hyperlinked list of sellers, effective for only a limited number of sellers to whom the consumer is matched. We find that this proposal would unnecessarily require consumers to consent to a potentially lengthy list of entities that may not be relevant to the product or service the consumer is seeking. Instead, we require consent to one seller at a time. Sellers and lead generators may provide additional information about sellers or a list of sellers that a consumer can affirmatively select in order to be contacted. "
Read that last sentence a few times before you think that preselecting sellers will be okay. I do not believe it is.
"33. We require consent to one seller at a time, but this requirement does not specify how many sellers can be listed on the web page; if the web page seeks to obtain prior express written consent from multiple sellers, the webpage must obtain express consent separately for each seller."
Yes, you can sell the lead as often as you like (which I think they fell short on as an alternative), but the consumer must select all those sellers.
"34. Clear and Conspicuous Disclosure and Logically and Topically Related. We adopt two additional protections to further guard against consent abuse. First, the one-to-one consent must come after a clear and conspicuous disclosure to the consenting consumer that they will get robotexts and/or robocalls from the seller. "Clear and conspicuous" means notice that would be apparent to a reasonable consumer."
I assume this means TCPA disclosures first and then the checkbox(s). I'm unsure if it means each potential lead buyer must have TCPA disclosures above their box or if it can be one disclosure and then the list of checkboxes.
"35. Second, we adopt our proposal that robotexts and robocalls that result from consumer consent obtained on comparison shopping websites must be logically and topically related to that website. Thus, for example, a consumer giving consent on a car loan comparison shopping website does not consent to get robotexts or robocalls about loan consolidation. We therefore agree with commenters who argue that consumers deserve protection against calls that go beyond the scope of consent, a scope that can be reasonably inferred from the purpose of the website at which they gave that consent. We believe that texters and callers are capable of implementing this standard and, when in doubt, will err on the side of limiting that content to what consumers would clearly expect. As a result, we decline to adopt a definition of "logically and topically" at this time as some commenters suggest. "
Cross-selling will have to be done very carefully if your comparison website covers multiple verticals, and you will probably have to get separate consent and not all at once.
FCC's Options You Have
"37. Websites, including comparison shopping websites, can use a variety of means for collecting one-to-one consent for multiple sellers to comply with our rule. For instance, the website may offer a consumer a check box list that allows the consumer to specifically choose each individual seller that they wish to hear from. Alternatively, the comparison shopping website may offer the consumer a clickthrough link to a specific business so that the business itself may gather express written consent from the consumer directly. Our rule does not prohibit comparison shopping websites from obtaining leads through valid consent and provides multiple opportunities for responsible comparison shopping websites to obtain leads for potential callers."
37 makes it incredibly clear that the consumer must select the box.
I probably should have put at the top that if you are a lead seller or a lead buyer and all of the leads are called the old-fashioned way by manually dialing them, skip to point 39. You appear to be in the clear. I think this affects the insurance vertical the most as they often run substantial call centers and use auto-dialers. If you are generating home improvement leads, and the contractors are all calling them manually, you seem to be in the clear IF I am reading this correctly.
"39. Further, callers and texters may avail themselves of other options for providing comparison shopping information to consumers, e.g., manually dialed or non-prerecorded or artificial voice calls or texts, email, or information displayed directly on the third party website. We find that the rule we adopt today provides the best balance between protecting consumers from unwanted and illegal calls and the need for small businesses to use leads generated by third parties to sell their goods and services. Indeed, small businesses themselves may utilize comparison shopping services when comparison shopping for business services and our rule protects these businesses from having their own phones inundated with unwanted calls and texts. "
"41. Burden of Proof for Valid Consent. We take this opportunity to reiterate that the burden is on the texter or caller to prove that they have consent that satisfies the TCPA and our rules. They may not, for example, rely on comparison websites or other types of lead generators to retain proof of consent for calls the seller makes. And, in all cases, the consent must be from the consumer. "Fake leads" that fabricate consumer consent do not satisfy the TCPA or our rules. In addition, the consumer's consent is not transferable or subject to sale to another caller because it must be given by the consumer to the seller."
All lead buyers and companies that generate their own leads need Jornaya or Trusted Form. Do not just place the code and hope it works. Test, please. No more calling the lead seller with, "I thought you had the certificate? Doesn't the Trusted Form ID cover me?"
Fake leads with real consumers still get you in trouble. This seems unfair, but it hammers home the point that you need to know where your leads are coming from and constantly monitor them.
Takeaway and Solutions
At boberdoo, we started working on a consumer consent flow late last year. Then, the rumor mill was that one-to-one requirements would not be in the FCC order. That was wrong. We have a working prototype using our Javascript-based forms manager that will allow the consumer to select the buyers they want to hear from, and only those buyers will get the lead. This may be a great solution for companies that work with affiliates who do not have the technical ability to code their forms to handle dynamic buyers before the sale. The affiliate could put your form code on their website.
boberdoo can do this server-to-server as well, and we are working with other companies in the industry to make it work. Lead generators are going to have to come to grips with transparency. It is the only way this can move forward if you want to generate a lead and try to sell it through another aggregator. They must be on board with the concept, and it must work every time. The consumer must select whom they want calls/texts from, and nobody else can call them (ignoring point 39 here).
We will also be integrating the ability to bid on traffic from a vendor in the same request as the ping. Some lead buyers may be too scared to buy leads from aggregators unless there is a foolproof call to Jornaya/Trusted Form to prove consent for them to call was given. That being the case, some lead buyers may be more interested in traffic and less in data leads. We will have the same concept with calls and plan on integrating with outside call systems if you are not using boberdoo for phone routing.
This is a lot. I know. It is scary, but we can find a way forward. If you generate your own leads and sell them directly to the people using the leads, you will have changes to make, but nothing that is not doable. If you are an aggregator and you are three hops in from where the lead was generated and then four more to who buys the lead….Your New Year's resolution needs to be to shrink those gaps quickly. Get as close to where the lead is generated and who is buying it as possible. See if you can generate your own or find retail buyers.
I am not a lawyer or your advisor. These are my interpretations of what I have read and been told.
-Brad Seiler