The Top Questions for Lead-Gen Businesses Regarding the FCC’s One-to-One Consent Rule

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Resource Centre
Cheque out the following resources released by the FCC:

• FCC fact sheet
• FCC announcement outlining new rules
• FCC report and order and further notice of proposed rulemaking

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The FCC’s latest regulatory requirements will transform how businesses approach lead generation.

Previously, it was permissible to sell a consumer’s consent to multiple entities listed on a single lead form. However, starting January 27, 2025, this practise will be prohibited under the new FCC ruling. Consumers will need to individually select and provide prior express written consent to each seller, one at a time.

Lead generators are scrambling to understand how these FCC rule changes will impact their business operations. The shift to one-to-one consent will mean adapting to new compliance standards, rethinking marketing strategies, and potentially facing increased operational complexities.

This blog will address key questions and share answers, helping you navigate this significant regulatory shift.

Does the one-to-one consent rule apply solely to lead sellers?

No, a lead seller is not considered the “seller” under the FCC’s new one-to-one consent rule.

Typically, in the lead generation industry, “sellers” are those who sell leads. However, under this new ruling, the “seller” is defined as the ultimate provider of the good or service; the “buyer” of the lead is actually considered the “seller.”

Even if you are an agency involved in selling a product, you are not classified as the “seller.” For example, an independent insurance agent selling policies does not qualify as the “seller.” In this case, the insurance carrier holds the title of “seller.”

Source: The Future of Performance Marketing: Navigating FCC Regulatory Changes

Will outbound manual dialling allow me to avoid the need to obtain express written consent?

Technically, this rule pertains to the definition of prior express written consent, which only applies to outbound calls made using regulated technology for marketing purposes.

Therefore, you can still use old leads if you are dialling manually, with a few important considerations:

• The definition of what qualifies as an autodialler under the TCPA is highly complex and continually evolving. Instead of assuming your click-to-dial process complies, consider using compliance and engagement solutions for consumer consent management.
• There is some risk that the one-to-one rule might also apply to numbers on the Do Not Call (DNC) list, even if dialled manually. While it’s not believed this is currently the law, influential groups advocate for this interpretation, and the issue may be tested in court. This creates additional risk for those looking to avoid the one-to-one rule by dialling manually.
• Additionally, certain TCPA-like state laws, such as those in Connecticut, prohibit calls made without prior express written consent, even if federal law permits them. Source

Can consent be obtained from an inbound caller?

No, prior express written consent can not be obtained from an inbound caller, even if a disclosure is read during a recorded phone call. The foundational agreement that the consumer accepts must be presented as a written disclosure. While the signature can be obtained orally, the agreement itself must be in written form. Source

What does the ‘logically and topically related’ language mean for lead generation?

The ruling restricts the scope of consent to matters “logically and topically” associated with the website where the consumer gave consent and related to the transaction that led to the consent being given. But what exactly does “logically and topically related” mean?

The truth is, no one knows for sure. The FCC has yet to define what “logically and topically related” means. Instead, they advise texters and callers to restrict their content to what the consumer would reasonably anticipate.

Consider the following example: If the offer is for a specific product, such as a “7% 30-year fixed mortgage rate,” deviating from that offer can put you at risk. For instance, if a consumer enquires about this mortgage rate but can’t qualify, offering them a different rate, an adjustable-rate mortgage, or a different product might not be considered logically and topically related to their original request.

It’s wise to adopt a conservative approach until the courts have clarified this phrase.

Source: The Future of Performance Marketing: Navigating FCC Regulatory Changes

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Does possession of consent roll over to third-party lead generators?

One of the most overlooked aspects of the new FCC one-to-one ruling, which could have significant implications, concerns the possession of consent by third-party lead generators.

According to the new regulation, callers cannot rely on third-party lead generators to maintain consent records. Callers must obtain the complete consent record before making any calls to the consumer.

While it is not entirely clear what documentation the caller needs, it must undoubtedly demonstrate that prior express written consent for each individual seller was obtained. It is very likely — though not yet confirmed by courts — that a record from the likes of ActiveProspect or Jornaya will be adequate. Other types of data records might also be acceptable.

However, under the new rules, a single line of API data or a simple third-party token is presumably insufficient. Source

Does listing my company on a form comply with the new FCC rule for obtaining consent for marketing calls?

Simply listing your company on a form does not comply with the new FCC rule for obtaining consent for marketing calls.

According to the rules, the name on the form accepted by the consumer must be that of the ultimate provider of the good or service — the “seller.”

It is illegal for a lead generator to list only their name, call the consumer, and then make oral offers for third parties.

However, it is permissible for the lead generator to offer their own services — likely as a broker — to help the consumer find services offered by others. This requires an objective rationale in the consumer’s best interest rather than just selling to the highest bidder. Additionally, the consumer must agree to the service before any offers are made. In many states and industries, broker licences will be required, along with increased regulatory scrutiny. Source

Is there a cap on the number of sellers that can be listed on a form?

There’s no straightforward answer to this question. Troutman Amin, LLP suggests limiting the number of sellers to what is visible on a single screen frame of the website, considering how the consumer views the page. However, the FCC has not defined a specific cap, and the courts may need to resolve this issue. On the plus side, you are not mandated to list only one seller on the page. Businesses may list multiple sellers on one page, generally by using checkboxes, as long as they allow consumers to select each seller individually. Source

Will the rule change go into effect as currently written?

According to Troutman Amin, LLP’s Eric J. Troutman, the answer is likely yes.

“There is a [small] chance that the challenge by the Insurance Marketing Coalition down in the Eleventh Circuit Court of Appeals is somehow successful. I’ve taken a look at the briefing; I just don’t think it’s very likely, but it could happen. I think the FCC has enough of a record built that they’ll be able to move forward with this new one-to-one rule. Is it going to go into effect as written? That’s an interesting question because there was a second NPRM (Notice of Proposed Rulemaking) comment period that was reopened following some of R.E.A.C.H.’s efforts. R.E.A.C.H. went to bat with the Small Business Administration of the FCC and did obtain some more time for small businesses — which almost all lead generators are — to weigh in on the impact of this one-to-one rule and to propose some modifications to the rule as it is written. Now, understand that the core of the one-to-one rule is not going away. There is going to be a one-to-one rule, almost certainly, effective in January of next year.”

Source: The Future of Performance Marketing: Navigating FCC Regulatory Changes

How can my business achieve full compliance with the one-to-one consent rule?

To achieve the highest level of compliance with the one-to-one consent rule, there are three essential steps your business must take. First, companies must establish a firm understanding and adhere to the intricate new one-to-one consent rule framework. They also have to ensure that the way leads are captured is logically and topically aligned with the intended calls. Most importantly, businesses must confirm that the caller possesses the consent record prior to initiating any calls. Source

Stay tuned to the Phonexa blog for updates on the FCC’s one-to-one consent rule change.