One is the loneliest number. Two’s company. Three’s a crowd. 5,329 is too many marketing partners to share a lead with. According to the FCC’s cease and desist letter, sent in response to scam robocalls concerning student loan debts, even when consumers consent to receive calls, there is a limit to what they deem reasonable.
Whether it was the actual number of marketing partners, that consumers who got these calls had not given consent to be contacted about student loans, or the fact that users could only know who their information would be shared with by clicking on a link to a separate page, this case seems to have spurred the FCC to propose new rules that would have a major impact on lead generators.
What the Text?
The FCC’s initial intent with this proposal concerns text messages, specifically requiring mobile wireless providers to block text messages from invalid numbers, numbers that the subscriber has blocked, and numbers that the FCC has identified as sending illegal texts. It would also require providers to have a single point of contact for texters to report texts that have been blocked in error, just as what is already required for blocked voice calls. Additionally, the proposal extends Do-Not-Call (DNC) protections to text messages.
These proposals would bring text message restrictions in line with those currently in place for mobile calls and are meant to protect consumers from scam robotext messages, which are on the rise and surpassed robocall scams in 2021. Text messages will still be a valid communication method for customers or prospects who have provided signed, written consent to be contacted.
Just days before the FCC issued these proposals, a judge in North Carolina dismissed a TCPA class action lawsuit, saying DNC does not apply to cell phones, which is in direct contrast with the FCC’s interpretation. Will this ruling have any impact on the FCC’s proposal? Stay tuned.
Closing the Loophole—or Throttling Lead Generators?
There is one more notice of proposed rulemaking that could “close the lead generator loophole,” potentially affecting lead generators and businesses who rely on them by banning the use of single consent for multiple marketers or “partner companies.” This could significantly impact the number of partners that consumer information can be shared with, as well as limit contact for the purpose that the information was provided.
In other words, consumers must know with whom their information is being shared; and data brokers would not be able to pass contact information along to other entities that have not been previously disclosed. For instance, in the dismissed TCPA class action suit mentioned above, consumers provided their phone numbers when registering for a sweepstakes; they probably did not expect their phone numbers to be shared for burial insurance sales calls.
For now, the FCC is seeking comment so it can determine whether the value of comparison-shopping sites for insurance rates, for example, outweighs the risk of receiving multiple unwanted calls and texts. Is there a way to be more transparent about consent, so consumers are aware their information will be shared with multiple parties? Or will a final ruling mean that consumers are only providing consent for one partner at a time? One is not only the loneliest number; it’s also not a viable number for lead generators.
What’s a Lead Generator to Do?
For now, one of the best things a lead generator can do is to adopt or continue best practices, including:
Having a solid indemnification agreement in place to protect you and all your marketing partners. This can protect you as a lead generator in the event that a marketing partner violates TCPA regulations and may be more important than being concerned about the number of marketing partners you have.
Ensuring that consumers know that by providing their contact information, they are consenting to be contacted, the manners of possible contact, and who their information will be shared with for marketing purposes. Here is a good refresher on what you need to do to be TCPA compliant by obtaining “written” consent in a digital world.
Taking proactive measures to prevent lead generation fraud. Consider partnering with a fraud prevention provider to detect and block fraudulent traffic and identify forms that contain stolen information entered by human click farms. This ensures you are recognized as a source of quality leads, not just a large number of leads.
Proving consent, everytime, is critical. Luckily there are tools available that help to document and prove consent with each and every lead. These tools can help companies comply to TCPA laws and protect from fines and possible litigation.
Asking yourself if simply following the rules is enough. We are not aware of any laws that require publishers or lead generators to track ad or lead generation fraud, but it should be a part of your due diligence. Yes, you may see a slight decline in leads when you proactively address fraudulent traffic, but it’s no secret that fraud exists, and doing nothing about it can lead to more problems for you and your partners down the road.
Keeping PACE With TCPA Compliance
In addition to FCC rules proposals, several states are enacting their own TCPA rules, or “mini-statutes” and establishing damage amounts. In some cases, TCPA class action lawsuits are changing from civil to criminal. These actions are taking place as TCPA robocall class action lawsuits continue to rise.
While keeping up with all the new rules is challenging, ignorance is no excuse for not following TCPA rules and regulations. That’s where the Professional Associations for Customer Engagement (PACE) comes in. PACE is focused on regulatory and compliance issues within the lead generation and performance marketing industries.
They actively monitor and track federal and state regulations regarding telemarketing, robocalls, and more. By doing so, PACE can develop standards, principles, and best practices—and explain the differences between them—to their members.
There’s more help within reach: Eric Troutman, a prominent class action defense lawyer nationally recognized in TCPA litigation and compliance, has established Responsible Enterprises Against Consumer Harassment (REACH). This new trade organization aims to set standards for the lead generation industry and stop billions of unwanted robocalls each month.
The hope is that by establishing industry best practices, the FCC can continue to focus on the bad actors and lessen its focus on the industry itself. It also ensures consumers can continue to receive timely quotes and information they have consented to for services they want and need. While REACH is gaining momentum, it has already submitted comment to the Centers for Medicare and Medicaid Services (CMS) on the proposed ruling on marketing practices for certain Medicare programs.
Make plans to attend the 2023 PACE Washington Summit, May 21-23, the source for current compliance content from industry experts and leading professionals. It gets down to business with an FTC fireside chat and ends with an overview of state privacy laws, with plenty of opportunities to learn and network in between. Anura is pleased to be the presenting sponsor of this event.
Richard Kahn
