The FCC to Expand DNC Rules
Today, the FCC released a Report and Order and Notice of Proposed Rulemaking related to several “robotext” issues. The FCC will consider these and other items at its next meeting on March 16, 2023.
The Order focuses primarily on text blocking issues. For example, it requires mobile wireless providers to block text messages from numbers on a reasonable Do Not Originate list and maintain a single point of contact for texters to report erroneous blocking. Important stuff, but not the focus of this blog.
Instead, we focus today on the Notice of Proposed Rulemaking, which proposes two TCPA amendments that would significantly impact callers and texters.
First, the FCC seeks to expand the TCPA’s Do Not Call (DNC) protections to expressly cover marketing texts. The FCC previously determined that “text messages are calls for TCPA purposes” but it “never stated that text messages are subject to DNC protections.” In the wake of the Supreme Court’s narrow autodialer interpretation, plaintiffs’ firms rely heavily on the TCPA’s DNC provisions to bring new claims. The FCC’s admission that it has not expressly addressed this issue, and corresponding questions about whether it should “extend” DNC protections to cover marketing texts, provide interesting context for businesses litigating text-related DNC claims.
Second, the FCC proposes to modify the definition of “prior express written consent” in ways that will significantly impact lead generators and lead buyers. For example, the FCC intends to clarify that lead forms cannot obtain consent for multiple sellers unless they are “logically and topically associated” with the purpose and context of the website. The most obvious impact relates to lead forms tied to sweepstakes entries, “free” gift promotions, and the like, which purport to get consent for hundreds or thousands of sellers in many industry verticals. Similarly, this standard would invalidate “consent” obtained via an insurance lead form by sellers whose products or services are unrelated to insurance. The FCC also draws a hardline stance against one of today’s most common practices – disclosing sellers’ names behind a “partner” or similar hyperlink. If adopted, the FCC’s amendments will require all lead forms to disclose (logically and topically related) sellers’ names in the body of the consent language. The changes would drastically reshape the lead generation industry.
Interested parties will have an opportunity to comment on these issues; however, the FCC has not yet set a deadline for such comments.
Nick is a Partner at M&S where he leads the firm’s Compliance practice areas. He brings more than a decade of experience helping clients understand and comply with federal and state privacy, advertising, and telemarketing laws and regulations.