“DIRECTLY” DISPUTED: Why One Word in the FCC’s New NPRM May Shut Down the Entire Lead Generation Industry
Yes, the Czar is a superhero now… big ups to Pesach Lattin for giving me the treatment here. Really cool.
Much has been said about the FCC’s new NPRM that seeks to close the “lead generation” loophole. Too much, by too many, actually. And they’re not all saying the same thing.
It is becoming increasingly apparent that most folks–including lawyers who are speaking on the subject for some reason–are missing the single most important (or at least potentially impactful) component of the NPRM. Or they are simply choosing to ignore it. Really not sure which. Doesn’t matter though, either way it is incredibly dangerous.
So let me make this absolutely crystal clear so there can be no further mistake about it (and if you hear anyone else speak on this subject without addressing this issue–call them out as a phony and tell them to hush up and stop misleading people.)
The issue in the NPRM is the Public Knowledge proposal “that prior express consent to receive calls or texts must be made directly to one entity at a time.”
For whatever reason folks are completely overlooking this or suggesting–incorrectly–that it is tied to some sort “one to one” consent process where there can only be one (or a few) companies listed on a form but consent can still flow through an intermediary.
That is NOT what this says. And it is NOT what the Commission is considering. Stated more accurately, the Commission is considering MULTIPLE things. Including:
A revision to the CFR to determine “express written consent for a call or text may be to a single entity, or to multiple entities logically and topically associated. If the prior express written consent is to multiple entities, the entire list of entities to which the consumer is giving consent must be clearly and conspicuously displayed to the consumer at the time consent is requested. To be clearly and conspicuously displayed, the list must, at a minimum, be displayed on the same web page where the consumer gives consent.” (Important to keep in mind but NOT the industry-killer we should be focused on); and ALTERNATIVELY
Whether consent must be provided directly to the seller (which would be a real killer).
And lest there be any confusion as to what “directly” means, look at footnote 163 of the NPRM. It reads: “telemarketers ignore the requirement that the express invitation or permission can only be provided by the consumer directly to the seller.”
The Commission is already laying the ground work here to find that there is a “requirement” that consumers provide consent DIRECTLY TO THE SELLER.
That mean there can be no intermediaries here at all folks. Again, consent must go directly to the seller.
What does the word “directly” mean?
with nothing or no one in between.
Get it? NO intermediaries. NO data leads. NO warm transfers. NO lead generation industry as we understand it-at least no PEWC transfer.
I can’t make this any clearer.
So while it is true that the Commission is ALSO considering limiting hyperlinks, imposing one-to-one consents on forms and destroying multi-vertical websites (and those things are important too) the absolutely CRITICAL piece of the NPRM that folks need to line up against is the requirement that consent be provided DIRECTLY to the seller.
Now R.E.A.C.H. has already reminded the Commission that such a rule would be a VAST departure from the current law and incredibly disruptive to the industry. But it should would be GREAT if everyone else got on board here and actually HELPED the Czar save the industry at this point…
Speaking of R.E.A.C.H. you probably noticed the NPRM was MODIFIED by the FCC to address the R.E.A.C.H. standards ahead of release. It also noted R.E.A.C.H.’s goals of stopping a billion unwanted calls a month. Plus R.E.A.C.H. and Amerilife just joined forces to address the “directly” issue in a call with FCC staff on Monday, and I will provide more on all of that soon.
So we are fighting like mad here–and to good early effect–but we need others lined up and fighting too. Unfortunately it has been crickets from most in the industry to this point… (other than QS.)
One last note, sorry for the relatively limited content recently. The Czar is travelling coast to coast and everywhere in between right now, advocating for clients as well as for the industry. I’m pushing hard thee next few weeks but will pause to share a blog or two where I can. Always love you though TCPAWorld. Hang in there!