The One to One Consent Rule- Safe or Rope-A-Dope?

The Latest on One-to-One Consent: A Deep Dive into FCC and Eleventh Circuit Decisions, Its Application, and Best Practices for Marketers and Advertisers

The Tug-of-War Over One-to-One Consent

Let's talk about the recent roller coaster ride involving the Federal Communications Commission (FCC) and the Eleventh Circuit Court of Appeals concerning the "One-to-One Consent" rule under the Telephone Consumer Protection Act (TCPA).

Here's the deal: The FCC had rolled out a new rule in 2023, which was supposed to kick in by January 27, 2025. This rule would have required consumers to give specific consent to each individual seller or marketer, one at a time, before they could be contacted via certain means. The idea was to curb unwanted calls that stemmed from sharing consent that the consumer my not have been aware of.... think marketing partner lists!

However, just when this rule was about to become law, the Eleventh Circuit Court of Appeals threw a curveball. On January 24, 2025, it vacated this rule, arguing that the FCC had gone beyond its statutory authority. The court's reasoning was that under the TCPA, "prior express consent" should mean a consumer has clearly and unmistakably agreed to receive calls from anyone they've consented to, not just one entity at a time. This decision was a major win for marketers and lead generators who had been bracing for a significant shift in how they collected consent.

This ruling essentially put a hold on the FCC's one-to-one consent requirement, leaving the industry in a limbo of sorts but also breathing a sigh of relief for those who felt the rule was too restrictive.

Where One-to-One Consent Still Matters

Even though the Eleventh Circuit struck down the FCC's specific rule, is the industry safe from one-to-one consent? Well, the concept still holds relevance and is often required in other regulatory contexts:

• CMS (Centers for Medicare & Medicaid Services) Laws: In healthcare marketing, particularly for Medicare, the rules can be quite stringent. Here, you often need explicit, one-to-one consent for making telemarketing calls, especially since you're dealing with sensitive information about health care services.

• FTC Telemarketing Sales Rule (TSR): While the TSR doesn't explicitly mandate one-to-one consent, it does state the need for "Specific Party"; "Sellers and telemarketers are allowed to call a consumer who has given his or her express agreement, in writing, to receive calls from a specific party, even if the consumer’s number is in the National Do Not Call Registry, unless the consumer has revoked that consent."

• Calls to Consumers on Do Not Call (DNC) Lists: Here's where it gets tricky. If someone's on the DNC list, you generally can't call them unless they've given you specific permission. That permission needs to be direct and not just a blanket consent to a network of companies.

So, even if the broad FCC rule was vacated, in these areas, the spirit of one-to-one consent still guides how businesses should approach consumer consent.

Why One-to-One Consent is Good for Consumers and the Industry

From a consumer's perspective, one-to-one consent means control. You decide who can contact you, reducing the spam calls that nobody enjoys. It's like having a bouncer for your phone - only letting in who you've personally invited. This clarity in consent can lead to:

• Reduced Nuisance Calls: Fewer unexpected marketing calls or texts.

• Enhanced Privacy: Consumers have a clearer understanding of who has their contact information.

• Better Consumer Experience: When you get a call, it's more likely from a service or product you're actually interested in.

For the industry, while implementation is tricky and the economics can be severely impacted based on your particular business model, one-to-one consent can create a lot of benefits for companies:

• Trust: When consumers know exactly who they're dealing with, trust in brands can increase.

• Compliance: Avoids legal headaches from class action lawsuits under the TCPA or other regulations.

• Quality Leads: Companies get leads that are more qualified, potentially increasing conversion rates since the consumer has actively chosen to engage. Furthermore, the consumers are not bombarded with offers to where they grow frustrated and shut down entirely.

So, What to Do Now? Best Practices for Marketers and Advertisers in TCPA Consent

While this specific rule is dead, for now, don't be drawn in to a false sense of security. It is highly encouraged that all companies begin adopting One to One Consent strategies in your business practices. Put simply, it's good business to be transparent with your consumers and to deliver them a better experience.

The second part of that is this; One to One Consent, in some form or fashion, will be knocking on our doors again soon. The void that was left by the decision will likely be filled by states or other government agencies. This genie is not going back into the bottle.

So, how do you prepare? Here are a few things to consider;

• Clear and Specific Language: When asking for consent, be crystal clear about what you're asking. "Do you agree to receive calls from XYZ Inc. about our insurance products?" is much better than vague, catch-all consents.

• Opt-In, Not Out: Make sure consumers actively opt into communications. Pre-checked boxes or fine print creates substantial TCPA risk.

• Single Entity Consent: Even though the one-to-one rule was struck down, best practice still leans towards obtaining consent for each entity separately. This avoids confusion and potential legal issues.

• Record Keeping: Keep meticulous records of who consented to what and when. This is your shield if consent is ever questioned.

• Education and Training: Ensure your team knows the ins and outs of TCPA compliance. Regular training sessions can help avoid accidental breaches.

• Invest in Third-Party Services: Use tools that can help collect and manage consent and revocations. TCPA Technologies specializes in this, feel free to reach out for a consultation.

• Stay Updated: The legal landscape is like shifting sands, especially with the latest court decisions. Keep an eye on new rulings, FCC guidelines, or legislative changes.

• Transparency: Always inform consumers about why you're collecting their data and how it will be used. Transparency breeds trust and compliance.

• Respect DNC Lists: Ensure your calling lists are scrubbed against the National Do Not Call Registry and your own internal do-not-call lists.

• Consent Revocation: Make it as easy to opt out as it was to opt in. If a consumer wants out, your system should respect that immediately. Also, revocation rules are changing in April...we'll have much more on that!

In wrapping up, while the Eleventh Circuit's decision has provided some relief to marketers, the ethos of one-to-one consent is still crucial for both consumer protection and maintaining ethical marketing practices. This isn't just about avoiding penalties; it's about fostering a relationship where both parties feel respected and valued. By adopting these best practices, businesses can navigate the complex waters of consumer consent with confidence, ensuring that marketing efforts are both effective and compliant.

The TCPA Technologies Team
https://TCPATech.com