FCC ADOPTS NEW RULE TO CLOSE THE LEAD GENERATOR ROBOCALL AND ROBOTEXTS LOOPHOLE

On December 13, 2023, the Federal Communications Commission adopted new rules designed to protect consumers from “scam communications” by directly addressing some of the “biggest vulnerabilities” in America’s robotext defenses and closing the “lead generator” robocall/robotexts loophole.

The new rules allow blocking of “red flagged” robotexting numbers, codifies Do-Not-Call rules for texting, and encourages an opt-in approach for delivering email-to-text messages.

Closing the Lead Generator Loophole

The new rules close a loophole through which “unscrupulous robocallers and robotexters inundate consumers with unwanted and illegal robocalls and robotexts.” The new rules 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.

Combating Robotext Sources

The new rules allow the FCC to “red flag” certain numbers, requiring mobile carriers to block texts from those numbers. The rules also codify that Do-Not-Call list protections apply to text messaging, making it illegal for marketing texts to be sent to numbers on the registry. And the order encourages providers to make email-to-text messages an opt-in service, which would limit the effectiveness of a major source of unwanted and illegal text messages.

Groundwork for Future Steps

In addition to the rules, the FCC also proposed and will take public comment on additional steps it might take against robotexts. The FCC proposes additional blocking requirements when the FCC notifies a provider of a likely “scam text-generating number.” The FCC will also seek further comment on text message authentication – modeled on the implementation of STIR/SHAKEN protocols for phone calls – including on the status of any industry standards in development. The FCC also proposes requiring, rather than simply encouraging, providers to make email-to-text services opt-in.

Contact an experienced lead generation and telemarketing compliance attorney to discuss the impact of the new rule on the lead generation industry and legal regulatory operational strategies designed to minimize potential liability exposure.

Richard B. Newman is a digital marketing practices attorney at Hinch Newman LLP.  Follow FTC defense lawyer on X.

Informational purposes only. Not legal advice. May be considered attorney advertising.