[Lead Gen] FCC Regulations Around Mass Texting/Cold Calling, and How to Be Compliant with Them

My usual disclaimer: although I had a year of pre-law back in the day, I ain’t a lawyer, and I don’t play one on TV; I don’t have fiduciary responsibility towards you, your business, or to anyone else; and none of what I’m about to say here can be considered legal, financial, or taxation advice because I am not competent to give such to anyone. Run it by your own legal counsel, and conduct your business accordingly.

Getting ahead of "the sky is falling" FUD (fear, uncertainty, and doubt) that you may have been seeing in Facebook groups & elsewhere about all of this 🙄

First of all, these regulations are NOT "new". The Telephone Consumer Protection Act (TCPA) was signed into law in 1991, and it amended the Communications Act of 1934. Every so often, the two bodies charged with enforcing the law (the Federal Trade Commission and the Federal Communications Commission) issue updated regulations and rules as technology changes and as people use and abuse that technology to the detriment of consumers.

Just over a year ago (on December 18, 2023), the FCC issued FCC Rule 23-107: “Targeting and Eliminating Unlawful Text Messages, Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Advanced Methods to Target and Eliminate Unlawful Robocalls”. As usual, such rule changes go into effect in a rolling 12 months after being published in the Federal Register. Hence while the FCC gave everyone a year to get their acts together, the enforcement of FCC Rule 23-107 is going to come into effect on January 27, 2025.

The TL;DR of this underlining of already-existing parts of the TCPA as well as emphasis of new enforcement of it, that has gotten wholesalers and other business owners into such a tizzy:

Obtaining consumer leads from a lead seller is OK, as long as the lead seller is TCPA-compliant:

* 1:1 consent: marketers MUST get CLEAR, INDIVIDUAL, WRITTEN CONSENT from EACH consumer for EACH specific seller, BEFORE you reach out to a consumer with your marketing message;

* Clear disclosure: the lead seller MUST inform EACH consumer that they’re going to possibly be receiving automated text messages/calls from them (or from the people who bought those leads) that are related to the 1:1 consent already granted;

* Restriction on sharing information: the lead seller MUST to get consent from EACH consumer that that they’ll be getting communications from EACH seller INDIVIDUALLY; the consumer cannot give general consent for multiple entities at a time; and

* Regulations for Do-Not-Call (DNC) and text messaging: the lead seller MUST conform to the National Do-Not-Call (DNC) Registry, for such text messages, just as they have to do so for phone calls. Again, this has long been a part of the TCPA, but now the FCC is double-emphasizing it.

If you bought those consumer leads from a lead seller who got TCPA-compliant third-party consent from those consumers as spelled out above, or if you or your company obtained those consumer leads yourself in a TCPA-compliant way, you should be OK…BUT:

If you bought those consumer leads from a lead seller who DID NOT get TCPA-compliant third-party consent from those leads, or if you or your company obtained those consumer leads yourself in a non-TCPA-compliant way, then you’re up the creek without a paddle: the TCPA grants the FCC the authority to fine you from $500 to $1500 for EACH unsolicited call or text message. Not to mention the reputational hit your business will get, nor the fact that you and your company could be a defendant in a class action lawsuit against telemarketers like you. Because make no mistake: FCC Rule 23-107 classes you unambiguously as a telemarketer, no matter how your favorite guy on social media may try to finesse it.

That’s the situation. No use in whingeing about it or wracking your brain trying to finesse it or look for the loophole. After all, you and everyone else had a whole year to prepare for it. Acting as if people weren’t doing this business for decades before the invention of mass SMS / cold calling and list-pulling software like Propstream, or if there aren’t dozens of other lead generation/lead contacting methods out there, won’t put money in your pocket. The law’s the law, and we as business owners and entrepreneurs must follow the law, or face the consequences.

For further reading:

* ActiveProspect, December 2024: “Preparing for the FCC’s TCPA updates: A comprehensive checklist for marketers”

* ActiveProspect, November 2024: “How to manage TCPA third-party consent as a lead buyer”

* Kelley Drye & Warren LLP, January 2024: “Calling and Texting Regulations Tightening: FCC Adopts 1:1 TCPA Consent and Do-Not-Text Rules”

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