New Record-Keeping Requirements?: Why an Overlooked Portion of the FCC's New Ruling May Be Among its Most Impactful
Thursday, December 7, 2023

So the FCC’s new ruling is already creating headaches and it hasn’t even been officially adopted yet.

While I’ve already addressed the impact on small businesses and third-party concerns there is still tons to unpackage here.

Consider this: the FCC seems to be imposing a wholly new record keeping requirement–and it is one that should make third-party attestation software like Jornaya and TrustedForm very important in the future (even as CIPA issues need to be kept in mind.)

In the current environment a lead buyer may purchase a lead and then make outbound calls to the consumer who supplied consent. The lead will include data from the lead form but it may or may not include the leadform itself. That is, some leads will include tokens from third-party attestation services, and some will not. And even as to those that do those tokens may or may not be “claimed” by the caller before the call is placed.

This is generally ok. So long as the lead form data can be obtained from the lead source or third-party attestation software provider at the time a lawsuit is filed the caller should have a steady defense to any ensuing TCPA claim. (At least where the webform complies with the law.)

The FCC’s new ruling seems to destroy that practice, along with so many others.

Specifically, the ruling states:

41. Burden of Proof for Valid Consent. We take this opportunity to reiterate that the burden
is on the texter or caller to prove that they have consent that satisfies the TCPA and our rules.92 They may
not, for example, rely on comparison websites or other types of lead generators to retain proof of consent
for calls the seller makes. And, in all cases, the consent must be from the consumer. “Fake leads” that
fabricate consumer consent do not satisfy the TCPA or our rules.

The focus on fake leads in this paragraph is interesting but the real core is the bolded portion above. The FCC just found directly that the caller cannot rely on the lead generator to retain proof of consent for them. Rather, it seems, the caller must take physical possession of leadform cosent records before calls are made.

Crazy, right?

So this ruling begs a number of questions.

First, why?

As long as a record of consent exists it does not seem to matter to the consumer who is holding the record. And courts certainly do not care so long as the record can be authenticated. Why the FCC has decided to turn this issue on its head is confusing.

Second, can the FCC do this?

Unclear. This provision is not built into the CFR edit as part of the proposed rule. So it seems to be some sort of declaratory ruling. But what provision of the TCPA is the FCC interpreting here? And what is the factual underpinning for this finding?

Third, is this provision enforceable in court–and if so, how?

At the Summit we were discussing whether this provision would operate as some sort of evidentiary prohibition–like the court cannot admit evidence not obtained by the caller before the call was made.  Seems nuts but also seems to be the suggestion. Perhaps it simply operates to prevent callers from issuing subpoenas in litigation. Unclear. but no matter what it is another headache for TCPA defendants relying on third-party consent records.

Yet another issue to keep in mind here.


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