Advertising Law Blog

On January 27, 2025, there will be a significant legal change that will fundamentally affect the operations of all lead generators and those who rely on them. Many businesses are aware that the Telephone Consumer Protection Act (TCPA) is a federal law that requires prior express written consent in order to send auto-dialed calls, pre-recorded "robocalls" or mass promotional SMS texts. The TCPA also applies to AI-generated calls. But 27 days into the new year, the FCC will implement a new requirement that prior express written consent must be obtained on a "one-to-one" basis. This means that consent cannot be validly acquired for groups of message senders such as "our marketing partners" or "other companies that you may be interested in hearing from." Instead, consent will be required for each individual marketer that wishes to contact consumers. In response to this change, lead generators and others are developing methods such as check-box consent forms or offering multiple links to separate businesses to whom consumers can provide their consent. Additionally, any responsive marketing must be “logically and topically related” to the obtained consent. The one-to-one requirement does not apply to calls or texts that are sent manually as opposed to automatically, but anyone trying to circumvent the new rule is placing a very heavy bet that their dialing technology will not be considered "automatic" under the TCPA. This new requirement is the FCC's attempt to close the "lead generator loophole" which, for only a little while longer, allows consumer contact from multiple businesses based on a properly worded but general opt in.