On Dec. 13, 2023, the Federal Communications Commission adopted significant regulatory changes under the Telephone Consumer Protection Act, which will attempt to curb unlawful text messages and close loopholes exploited by lead generators. These measures are intended to protect consumers from the nuisance and invasion of privacy caused by unwanted robocalls and robotexts.
Specifically, the new rules codify National Do-Not-Call rules for texting, allow for blocking of “red flagged” robotexting numbers, closes the lead-generator loophole for lead-generation websites and encourages an opt-in measure for email-to-text services. These rules aim to enhance consumer protections by strengthening privacy and ensuring clear, informed consent for marketing communications across all platforms.
Extending do-not-call registry protections
In a move to strengthen consumer rights, the FCC extended the protections of the National Do-Not-Call Registry, which previously covered unsolicited telemarketing calls, to include text messages. Now, marketers also must obtain a consumer’s prior-expressed written consent before sending marketing texts to numbers listed on the do-not-call list.
This change aligns with the FCC’s broader efforts to curb unsolicited marketing communications across different platforms. The FCC strengthened consumer protections under the TCPA by codifying that consumers can revoke consent for autodialed calls or texts by any reasonable means, including through standard reply text responses like “stop,” “quit,” and “end.” Marketers are prohibited from limiting revocation to designated methods, ensuring consumers can easily and reasonably revoke consent.
This approach balances consumer protection with the ability of marketers to process requests effectively. The change to the do-not-call registry rule for text messages took effect on March 26, 2024, and the requirement that marketers honor consent revocation requests took effect on April 4, 2024.
Blocking unlawful text messages
The “red flag” rule adopted by the FCC’s new rules require mobile wireless providers to block text messages originating from numbers identified by the FCC as sources of illegal texts. Upon receiving notification from the FCC’s Enforcement Bureau, mobile wireless providers must block all texts from the specified number(s). This action must be timely and providers must certify to the FCC that they have started the blocking process.
The FCC’s enforcement mechanism includes a clear process where the FCC identifies and publishes notifications of illegal texts, detailing the offending numbers and the dates the texts were sent. Mobile wireless providers must then act within a specified timeframe, blocking the texts and informing the FCC of any reassigned numbers to ensure legitimate communications are not inadvertently blocked. The Red Flag rule will be effective on Tuesday, Sept. 3, 2024.
Closing the lead-generator loophole
A key focus of the FCC’s new TCPA regulations is targeting the lead-generator loophole. Lead-generation websites collect consumer information through website traffic with the aim of converting visitors into potential customers. This practice often leads to a barrage of unwanted marketing calls and texts.
Under the new TCPA regulations, these websites now must adhere to stricter consent requirements to enhance consumer protection. Lead-generation websites must obtain clear, conspicuous and specific consumer consent on a one-to-one basis for each seller wishing to contact the consumer. The regulations require consent to be fully informed, meaning consumers should be aware of what they agree to and for which seller.
Additionally, any communication resulting from this consent must be logically and topically related to the website where the consumer provided their consent. For example, if a consumer consents to receive information about car loans on a comparison website, they cannot be contacted about unrelated services, such as loan consolidation, without additional, specific consent. This new requirement will become effective on Monday, Jan. 27, 2025.
Opt-in requirement for email-to-text services
Email-to-text services, which allow text messages to be sent from email addresses, have been identified as significant sources of fraudulent and unsolicited texts. These services offer a relatively anonymous way to send messages, making it easier for scammers to target consumers.
To combat this, the FCC is encouraging providers to make email-to-text services opt-in only. This means consumers would need to proactively consent to receive such messages, thereby reducing the volume of unwanted texts and enhancing consumer control over their communications.
What agents need to know
What should agents be aware of regarding the FCC’s lead-generator and robocall regulations? There are a few key takeaways and best practices that all insurance agencies need to know:
Enhanced consumer consent requirements. The new rules strengthen consumers’ ability to revoke consent to receive robocalls and robotexts. Insurance agencies must ensure that they obtain clear, express written consent before making calls or sending texts and provide simple methods for consumers to revoke their consent at any time.
Documenting consent and revocations. When a consumer revokes consent, insurance agencies are required to honor do-not-call requests and consent revocations within 10 business days. This means agencies need to update their systems promptly to reflect these changes to avoid penalties for noncompliance.
It’s crucial for insurance agencies to keep thorough records of consumer consent and revocation requests. This includes documenting the date and method of consent and any revocation requests. Proper documentation can help mitigate disputes and potential legal issues.
Review and update policies. Regularly review and update your communication policies to ensure they comply with the latest regulations. This includes updating privacy policies, consent forms and communication scripts.
Theophilus Alexander
Theophilus W. Alexander joined PIA Northeast as a government & industry affairs specialist for the Government & Industry Affairs Department in 2023. Prior to joining PIA, Theo had served in both houses of the New York State Legislature. Previously, he worked as a legislative analyst for Hon. New York State Sen. Samra G. Brouk, D-55, and he served at the New York State Assembly, as a policy analyst with New York Assembly Program & Counsel. Theo received his Bachelor of Arts degree in Politics from Ithaca College in Ithaca, N.Y.
