The Impact of FCC’s New Lead Generation Regulations for Lenders and Real Estate Agents

The FCC’s recent actions were primarily aimed at closing what they perceived as the “lead generator robocall and robotexts loophole.” This loophole allowed businesses to engage in lead generation practices without requiring prior express written consent for each individual seller. The FCC identified this practice as a source of numerous unwanted robocalls and robotexts, which raised concerns among consumers.

Key Provisions of the New Regulations:

1. Individualized Consent: Under the new FCC rule, businesses are required to obtain prior express written consent from consumers on behalf of one seller at a time. This means that each seller must obtain explicit consent separately, effectively ending the practice of obtaining vague or hidden consent.

2. Web Page Consent: While multiple sellers can be presented on a webpage, each seller must secure express consent separately. This ensures clarity and specificity, eliminating any ambiguity regarding the consumer’s intentions.

3. Logical and Topical Relationship: The consent obtained must maintain a logical and topical relationship to the website where it is provided. This means that consent for one type of service does not imply consent for unrelated services, enhancing consumer protection. For instance, a real estate agent or mortgage lender could refer and share professional contacts, but couldn’t be sold into the open and unrelated marketplace.

4. Extension to Text Messages: The FCC’s new rules extend the National Do Not Call Registry protections to text messages, requiring marketers to obtain prior express invitation or permission for marketing texts to wireless numbers listed in the registry. This move aligns text message regulations with those for voice calls.

5. Addressing Text Message Blocking: The regulations introduce mechanisms to address the blocking of text messages by terminating providers upon notification. This ensures prompt action in blocking identified texts unless they are determined to be legal.

6. Email-to-Text Encouragement: While not mandatory, the FCC encourages providers to offer email-to-text as an opt-in service to reduce fraudulent text messages sent with relative anonymity.

7. Implementation Period: Acknowledging the need for adaptation, the FCC has granted a 12-month implementation period following the publication of the new rules. This allows businesses to adjust their practices accordingly.

8. Additional Comment Period: The FCC is inviting further comments to refine and minimize potential economic impacts on small businesses adhering to the one-to-one consent rule under the TCPA. Stakeholders have until late January to provide input on these matters.

Considerations for Lead Generators:

Lead generators face a paradigm shift in obtaining consent. They must provide consumers with clear options to choose individual sellers they wish to hear from. This may involve implementing checkbox lists or click-through links. Additionally, lead generators must ensure that consents align logically and topically with the consumer’s expectations.

Considerations for Advertisers:

Advertisers must validate the accuracy of consumer consent and establish procedures for maintaining comprehensive records. They should also assess the validity of existing leads and update consent as needed. Finally, businesses should explore non-automated contact methods to comply with the new regulations.

Conclusion:

The FCC’s new lead generation regulations mark a significant departure from previous practices, requiring businesses to obtain explicit consent for each seller individually. These changes aim to protect consumers from unwanted communications while necessitating a reevaluation of lead generation strategies. Businesses must adapt to these regulations and navigate the evolving regulatory landscape with diligence and compliance in mind.