New Rules Govern Telephone and Text Marketing

| January 21, 2025

On December 18, 2023, the Federal Communications Commission (FCC) published new rules for the Telephone Consumer Protection Act, aimed at protecting consumers from telephone and text marketing without the consumer’s consent.  The TCPA established the Do-Not-Call Registry and rules that prohibit a business from contacting a consumer on the list absent the consumer’s consent.  Most of the rule went into effect in 2024, but one final change will take hold on January 27, 2025 – 47 C.F.R. 64.1200(f)(9) shall be amended to change the term “prior express written consent” from:

“[A]n agreement, in writing, bearing the signature of the person called that clearly authorizes the seller to deliver or cause to be delivered to the person called advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice, and the telephone number to which the signatory authorizes such advertisements or telemarketing messages to be delivered.” [OLD LANGUAGE]

To the following:

“[A]n agreement, in writing, that bears the signature of the person called or texted that clearly and conspicuously authorizes no more than one identified seller to deliver or cause to be delivered to the person called or texted advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice. 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.” [NEW LANGUAGE]

The practical effect of this change is to establish the “one-to-one consent” rule, removing the ability of the solicitor to obtain blanket consent for robocalls or robotexts.  Multiparty consent is no longer possible unless the solicitor obtains specific permission for each individual business for which the consumer consents.  This has the likely effect of shutting down many previously valid referral generation businesses, as a list of consumers granting blanket approval for contact can no longer be sold and utilized because the consumer who gave the blanket referral to the lead-generation company did not grant specific and direct consent to the brokerage that purchased said lead from the generator-business.  Similarly, the rule change likely prohibits a previous practice where an affiliate or subsidiary company would also obtain consent from a consumer within a single approval [e.g. “by agreeing here, you consent to receiving information about purchasing property, and once you have purchased property, consent to receiving information about our property management services..”].

Separate but equally important, a second set of rulemaking by the FCC goes into effect on April 11, 2025, further modifying the TCPA.  This second set of rules makes it easier for the consumer to revoke consent.  If the consumer provides any reasonable means of revocation [e.g. text reply “STOP”, or “quit” or “cancel” or “revoke” or “unsubscribe”, but any reasonable phrase that conveys intent to revoke consent will work], the solicitor must honor the request within 10 business days.  The solicitor may send a one-time text message clarifying that the consumer no longer wishes to receive marketing or promotional information, but only if that confirmation text is sent within 5 minutes of the revocation request.  If the confirmation takes more than 5 minutes, the solicitor must show why the delay was reasonable.  Revocation of consent only applies to robocalls and robotexts that would otherwise violate the TCPA, exempt contact, for example – informational calls [“we are calling to inform you that there has been a data breach…”], are still permitted unless the consumer also expressed intent to opt out of those calls.

Brokerages are encouraged to review their compliance protocols to ensure compliance with the upcoming January 27 and April 11 rule changes.  If your business receives leads from another company, contact that lead-generator and determine whether their process complies with the new TCPA.  If your brokerage has a protocol for stopping contact, it must be tooled to comply with the TCPA revocation rules.  You run the risk of violating the TCPA if you have rudimentary software that lacks the capacity to interpret myriad terms for cessation.   For instance, if your robotexting software will only stop messaging upon receiving the specific word “Stop” and a consumer writes back with the word “unsubscribe” or another similar, but not identical phrase – it is incumbent upon the solicitor to cease the contact and the simplistic software could mistakenly continue to prod the consumer after receiving the stop command.

Read more about the changes that went into effect in January at the Perkins Coie website.