On October 11, 2024, the Federal Communications Commission (FCC) announced an effective date of April 11, 2025, for the new Telephone Consumer Protection Act (TCPA) rules on the revocation of consent. Companies that call or text to communicate with consumers should be mindful of these rules as well as the FCC’s 1:1 Consent Rule that will also go into effect in early 2025. Failure to comply with the changes will put companies at risk of class action exposure as the TCPA continues to be a hotbed of litigation.
New Revocation Rules
The FCC published a Report and Order on February 15, 2024 (February Order), clarifying the rules for revoking consent under the TCPA. The February Order codified a 2015 FCC declaratory ruling that consumers may revoke prior consent in a reasonable manner provided that the consumer “clearly expresses a desire not to receive further calls or text messages.” The FCC’s intent in codifying this ruling was to reinforce the right of consumers to revoke consent. For example, using an automated, interactive opt-out mechanism for calls or texts is a per se reasonable way to revoke consent. In the context of texts, a consumer can reasonably revoke consent by responding with the words “stop,” “quit,” “end,” “revoke,” “opt out,” “cancel,” or “unsubscribe.” Additionally, if the caller designates a specific method for revoking consent, the caller must honor consumers who use it.
There are three basic takeaways from the February Order that companies should consider before these rules go into effect in April 2025. First, companies may not mandate certain methods for consumers to revoke consent. Since the February Order permits revocation by “any reasonable means,” companies that employ telemarketing through texts or calls must diligently review all consumer communications, not just communications using the provided opt-out method. Second, companies must promptly honor consumer requests as soon as practical, and no more than 10 business days following revocation. Finally, the February Order gives companies who receive an ambiguous revocation one chance to ask the consumer to clarify, via a confirmation text.
New 1:1 Consent Rule
Companies should also take note of another FCC order, which will impose a so-called 1:1 Consent Rule, effective January 26, 2025. As noted in a prior alert, the 1:1 Consent Rule will limit businesses’ ability to rely on lead generators and comparison shopping websites to attract new customers. The 1:1 Consent Rule, as explained in the FCC’s Order of December 13, 2023 (December Order), is designed to close “the lead generator loophole” for telemarketing texts and calls. The FCC has clarified that a lead generator cannot hyperlink to a list of telemarketers (partners) to which the consumer’s consent may apply, so a customer’s single prior express written consent to receive calls or texts cannot apply to multiple telemarketers. Instead “texters and callers must obtain a consumer’s prior express written consent,” a requirement that “applies a single seller at a time.” This will have a significant impact on comparison shopping websites that often are the source of lead generation.
Specifically, each consent must “clearly and conspicuously authorize no more than one identified seller” to contact a customer using an automatic telephone dialing system or an artificial or prerecorded voice. Furthermore, 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.”
With the 1:1 Consent Rule going into effect on January 27, 2025, businesses should review their own TCPA policies and procedures as well as the practice of any third-party lead generators they may use. This includes identifying consumers whose consent was obtained as part of a multi-company consent and determining whether vendors are contacting customers on the business’s behalf based on consent that does not align with the 1:1 consent requirements.
Conclusion
With these new rules going into effect, it is more important than ever for companies to make sure they are carefully reviewing their TCPA compliance policies and procedures. Both the revocation and 1:1 consent rules open up new avenues of liability for companies in TCPA suits. As noted in a recent alert, there is some uncertainty going forward as the Supreme Court weighs the enforceability of FCC orders. Until the Supreme Court reaches a decision, however, companies that do not strictly comply with the new rules will face heightened exposure and potentially massive damages from class action suits.
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