We aim to keep our customers and industry associates up-to-date with the compliance news reported around our industry. These articles are reprinted here for our readers, courtesy of TCPA World, Mac Murray & Shuster, LLP, and Convoso.
A Closer Look at FCC’s Overlooked Record-Keeping Requirements
Consider this: the FCC seems to be imposing a wholly new record keeping requirement—and it is one that should make third-party attestation software like Jornaya and TrustedForm very important in the future (even as CIPA issues need to be kept in mind.)
In the current environment a lead buyer may purchase a lead and then make outbound calls to the consumer who supplied consent. The lead will include data from the lead form but it may or may not include the leadform itself. That is, some leads will include tokens from third-party attestation services, and some will not. And even as to those that do those tokens may or may not be “claimed” by the caller before the call is placed.
This is generally ok. So long as the lead form data can be obtained from the lead source or third-party attestation software provider at the time a lawsuit is filed the caller should have a steady defense to any ensuing TCPA claim. (At least where the webform complies with the law.)
The FCC’s new ruling seems to destroy that practice, along with so many others.
Writ of Certiorari Denied: U.S. Supreme Court’s Ruling on Brickman v. Meta
The U.S. Supreme Court released an order yesterday denying a request that the Court review a decision reached in the case Brickman v. Meta.
Brickman v. Meta was decided by the Ninth Circuit Court, which reviewed the question of whether an autodialer as defined by the Telephone Consumer Protection Act (TCPA), known as an “automatic telephone dialing system” (ATDS), must use a random or sequential number generator (RSNG) to actually generate the telephone numbers that are dialed. The Ninth Circuit court held that, yes, the dialer must actually use the RSNG to generate a list of telephone numbers to be called.
FCC Closes “Lead Generator Loophole”
The Federal Communications Commission (FCC) made their highly anticipated move to adopt proposed rules aimed at bolstering consumer protections from unwanted robocalls and robotexts. [see excerpts from their press release below].
Some of the abusive practices the FCC is targeting include “bad actors” sending illegal pre-recorded calls and text messages to consumers, and the unrestrained sharing of consumer consent from comparison shopping websites with no limitations.
This means changes for the lead gen industry. Change can be daunting. But let’s take a deep breath.
The name of the game is to practice vigilance to review and adjust your tactics in relation to changing regulations. We want to deflate the panic, and encourage the adoption of positive solutions.
FCC Amends Lead Generator TCPA Ruling
[The FCC made] two MASSIVE changes to the rule that folks really need to understand.
First, the Commission extended the period of time for the implementation of the rule to a full 12 months!
We want this important consumer protection rule to be successfully implemented by comparison shopping websites and lead generators. While we find that our rule does not unduly burden callers or comparison shopping websites, we nonetheless give sellers, texters, and callers, and any third-party websites they obtain consent through, a 12 month implementation period to make the necessary changes to ensure consent complies with our new requirement
Plus the Commission gave even more grace from implementation standpoint by allowing the latter timeframe of publication or paperwork reduction act review to be the enforcement trigger:
fn 113- This period for implementation will be 12 months following Federal Register publication of this Report and Order or 30 days after announcement in the Federal Register of the Paperwork Reduction Act approval of the information collection in this new rule, whichever is later
So realistically I am thinking March 2025 before this rule takes effect.
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