New FCC Rule Affects Consumer Consent for Robocalls and Robotexts

A new FCC rule will require comparison shopping websites and lead generators to obtain consumer consent to receive robocalls and robotext messages one seller at a time.

On December 18, 2023, the Federal Communications Commission ("FCC") released a new rule that significantly constrains the ability of websites used for comparison shopping and lead generation to secure consent from consumers to receive robocalls and text messages from large numbers of unrelated service providers. The FCC explained that the new rule is intended to make it "unequivocally clear that comparison shopping websites and lead generators must obtain consumer consent to receive robocalls and robotexts one seller at a time – rather than have a single consent apply to multiple telemarketers at once." 

As background, the FCC's rules currently require businesses to secure a consumer's prior written consent before sending them telemarketing text messages or initiating prerecorded robocalls for telemarketing purposes. The FCC and public interest groups have expressed concern that websites used for comparison shopping and lead generation are evading the intent of these rules by securing consumer consent in the context of one type of product or service (or in relation to one retailer or service provider) and using that consent to justify texts and robocalls involving the advertisement of unrelated products and service.

The FCC's new rules include three major requirements:  

  • Consumer consent to receive telemarketing texts or robocalls must be one-to-one in nature, meaning that any consent provided can only apply to one identified seller. 
  • Consumer consent can be obtained only following a "clear and conspicuous" disclosure to the consumer that they will get robotexts and/or robocalls from the seller.
  • All robotexts and robocalls that result from consumer consent obtained on comparison shopping websites must be "logically and topically related" to that website. Thus, as the FCC explained, a consumer giving consent on a car loan comparison shopping website cannot be used as consent to receive robotexts or robocalls about loan consolidation. 

In adopting these rules, the FCC acknowledged that websites designed for comparison shopping and lead generation provide benefits to consumers and small businesses by consolidating useful information about competing products and services. The FCC concluded, however, that such websites can continue to facilitate commercial activity and inform consumers without violating the intent of the FCC's robocall and robotext consumer protections.

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