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(This article is not intended as legal advice - please seek counsel if having questions.)

The Telephone Consumer Protection Act (TCPA) has been a cornerstone of consumer protection against unwanted calls and texts for decades. However, recent updates to the TCPA's "1-to-1" rule are set to significantly impact lead generation strategies. Over the last few months we have seen more and more solutions and strategies come up - we urge you to always consult with counsel before implementing a solution or strategy.

This article provides a comprehensive overview of the TCPA, its history, and the implications of these new changes for businesses.

What is the TCPA?

The TCPA was designed to safeguard consumers from the growing intrusion of telemarketing and robocalls in marketing campaigns. The TCPA outlines the restrictions of:

• Unsolicited calls: Telemarketers, marketing, lead generators and others cannot make calls to consumers who haven't given express consent.
• Automated calls: The use of automatic telephone dialing systems (ATDS) and pre-recorded messages is heavily regulated.
• Faxes: Unsolicited fax advertisements are prohibited
• Do-Not-Call Registry: Consumers can register their phone numbers to prevent telemarketing calls.

Quick History and Impact on Consumers

Before the TCPA, consumers were absolutely bombarded with unwanted calls, often at inconvenient hours. If you have been in lead generation long enough you will remember the days of sending money to a ‘lead provider’ for a CVS of data, loading it up in an SMS platform and hitting send. Oftentimes in those days most would have no idea of the origin of the data let alone having the consent of the consumer.

These types of marketing practices caused significant frustration and invaded the privacy of the consumers who got these calls and texts. The TCPA then empowered consumers by giving them control over who could contact them, the frequency and ability to opt-out.

The creation of the TCPA led to:

• Reduced unwanted calls: It has been mentioned that consumers experienced a significant decrease in telemarketing calls after registering on the Do-Not-Call list
• Increased consumer awareness: The TCPA educated consumers about their rights and provided a legal recourse against violators.
• Much needed industry changes: Telemarketers and businesses had to adapt their practices to comply with the law, leading to more ethical and transparent communication.

The "1-to-1" Rule and its Update

The TCPA has always required businesses to obtain "express consent" before making telemarketing calls. However, the definition of this consent has seemingly been subject to interpretation and many have different view points on how to properly get consent, what that consent means and what they can do with it. The "1-to-1" rule, effective January 2025, clarifies this ambiguity for the consumer.

Old Interpretation: Previously, some businesses argued that consent given in a broad context (e.g., signing up for a newsletter/email submit) implied consent to receive telemarketing calls and sms messages. In addition to this what was most notable was the use of the ‘partners page’ and ‘alternative service providers’. It was common to see a job search site that collected consent of the user and on the partner’s page was other verticals such as debt, personal loans, education, insurance and the list goes on and on. From a personal perspective, I feel the partners page does make sense (to allow many entities to be opted in) but to push to other verticals seems to be too far. Purely from the perspective of a consumer experience of signing up for one thing and being solicited for another, it just sucks and screams low quality.

New Rule: The updated rule mandates that consent must be given specifically for telemarketing calls, separate from any other agreement. This means businesses need a clear and unambiguous record showing the consumer knowingly agreed to receive calls promoting their goods or services.

Impact on Lead Generation

This change has profound implications for lead generation:

• Increased scrutiny: Businesses must meticulously review their consent practices and ensure they meet the stricter standards.
• Re-evaluation of existing leads: Leads gathered under the previous, broader interpretation may no longer be valid. Companies might need to re-obtain consent from these contacts
• Emphasis on transparency: Lead generation forms must clearly state the purpose of collecting phone numbers and explicitly mention the possibility of receiving telemarketing calls.
• Potential for increased litigation: The stricter rules could lead to more lawsuits against companies accused of violating the TCPA.

Violations and Penalties

Violating the TCPA can result in severe consequences, including:

• Fines: Penalties range from $500 to $1,500 per violation, which can quickly escalate for mass calls or texts
• Class action lawsuits: Consumers can join together to sue companies for TCPA violations, potentially leading to millions in damages.
• Reputational damage: Negative publicity and loss of consumer trust can significantly harm a business.

Examples of TCPA violations:

• Calling numbers on the Do-Not-Call Registry: Contacting consumers who have explicitly opted out of telemarketing calls.
• Using an ATDS without consent: Employing automated dialing systems to contact consumers who haven't agreed to receive such calls.
• Making pre-recorded calls without consent: Delivering pre-recorded messages without obtaining prior express consent from the recipient.
• Failing to honor opt-out requests: Continuing to call consumers after they've requested to be removed from the call list.

Conclusion

The updated "1-to-1" rule under the TCPA marks a significant shift in the overall operation of lead generation. Businesses must prioritize compliance to avoid legal repercussions and maintain ethical communication practices. This includes obtaining explicit consent, being transparent about data collection, and respecting consumer preferences. While the changes may present challenges, they ultimately promote a fairer and more consumer-friendly environment.