Next year, the FCC’s new rules requiring prior written consent for robocalls and robotexts per seller will go into effect thus closing the “lead generator loophole.” Specifically, on January 27, 2025, the FCC’s amendments to the definition of “prior express written consent” will go into effect. The term “prior express written consent” will now require: (1) “an agreement, in writing”; (2) “that bears the signature of the person called or texted” (italics added); (3) “that clearly and conspicuously authorizes no more than one identified seller to deliver or cause to be delivered to the person called or texted advertisements or telemarketing messages”; and by (4) “using an automatic telephone dialing system or an artificial or prerecorded voice.” Of note:

• The definition will now include text messages in addition to calls.
• Prior express written consent will apply to one seller at a time.
• Written consent must be obtained after providing the consumer with clear and conspicuous disclosure, which the FCC described as “notice that would be apparent to a reasonable consumer.” The FCC provides that such disclosure must inform the consumer executing the consent agreement:
  • By signing the agreement, such person authorizes one seller to deliver to them telemarketing calls or texts using an automatic telephone dialing system or an artificial or prerecorded voice; and
  • The consumer is not required to agree to enter or sign the agreement (directly or indirectly) as a condition of purchasing any property, goods or services.
• The calls and texts must be “logically and topically associated with the interaction that prompted the consent.”
• The prior express written consent agreement must identify the telephone number to which the signatory authorizes such advertisements or telemarketing messages to be delivered.
• The prior express written consent requirement will apply to both residential and business phone lines.

The FCC noted that comparison shopping websites may offer a check box list that allows the consumer to choose the seller of their choice or a clickthrough link to the seller to obtain the consent from the consumer directly.

The FCC released its final rule in January affecting the TCPA with most rules having gone into effect March and July of this year, but the amendment to 47 CFR 64.1200(f)(9) on prior express written consent will go into effect next year.