On December 18, 2023, the Federal Communications Commission (“FCC”) released a Second Report and Order, Further Notice of Proposed Rulemaking, and Waiver Order (“Report and Order”) outlining new rules and regulations under the Telephone Consumer Protection Act (“TCPA”) to limit unwanted and unlawful texting. The FCC Order explicitly seeks to close the “lead generator loophole” by which lead generators rely on a single consent granted by the consumer to apply to multiple businesses at once.
Key rules in the Report and Order likely to apply to educational institutions include:
- One-to-One Consent. The Order amends the “prior express written consent” requirement to state that consent must clearly and conspicuously authorize communications using an auto dialer or prerecorded message from a single seller at a time (i.e. “one-to-one consent”) and that such calls and texts must be logically and topically related to the interaction the prompted consent.
- Codifying DNC Rule for Texts. The Order codifies prior FCC and court precedent that the application of the TCPA’s Do-Not-Call (“DNC”) Registry provisions apply to text messages, making it illegal for marketing texts to be sent to numbers on the Registry without an exception.
The FCC included a reminder to companies that burden of proof is on the texter or caller (not the lead generator) to prove that they have obtained valid consent. Businesses that use lead generators should review their contracts with these service providers to ensure compliance with these new rules and audit all lead generation sites for compliance. Any schools that use text marketing should also review their texting and Do-Not-Call policies to ensure they are compliance with these new rules.
Read the full Alert on the Duane Morris LLP website.
