Will the Amendments to the TCPA Transform the Online Lead Generation Business?

Posted: October 2, 2013

telemarketerThe Office of Management and Budget’s final approval of the Federal Communication Commission’s (FCC) amended Telephone Consumer Protection Act (TCPA) regulations was published in the Federal Register on October 16, 2012. Although the amendments include several changes, the focus of this article is on the new prior express written consent requirement for autodialed calls to wireless telephone numbers and the new consent standard’s potential impact on the lead generation industry.

The amendment mandates that no telemarketing call may be made to a consumer’s wireless telephone using an automatic telephone dialing system unless the consumer has provided prior written express consent. The game changer here is the fact that there is now a requirement that mandates client specific consent. Prior to this new written express consent standard, lead generators were only required to inform consumers of the names of companies that might call, if this is known at the time the consumer submits information, or the number of companies that might call. This prior standard would provide an inquiry established business relationship (EBR) exemption and would gain the consumer’s express consent (current standard’s provision of the telephone number) to call the wireless telephone number using an autodialer.

The new standard, however, requires a consumer provide prior express written consent to the SPECIFIC company that will rely upon that consent. Therefore, each seller that places an outbound solicitation call to a wireless telephone must evidence that the consumer consented to receive a call from their company. This drastically changes the playing field. The previous lead generator guidance from the FTC was largely a Do Not Call EBR exemption issue. This new consent standard is one-to-one (consumer-to-company placing the call). This particular amendment is a major upheaval to the traditional lead generator model.

Although the express written consent requirement for solicitation calls to wireless telephone numbers using an autodialer does not go into effect until October 16, 2013, many companies, including sellers and telemarketers, are implementing strategies now to gain this level of consent from current and prospective customers in order to avoid a significant loss of lead flow once the requirement is in effect. Among these strategies include gaining consent from the consumer from the beginning – the point in which the consumer’s contact information is collected.

If you are a company generating leads solely on your own behalf for the sale of your own products, the solution for compliance with this requirement is much less complex. By simply implementing the required disclosure language and gaining express written consent for wireless numbers on all of your company-specific web forms, you have met this requirement.

The new consent standard poses a more complex set of questions for third party online lead generators; that is, entities generating leads on their client’s behalf.

For a lead generator who simply generates and provides leads directly to the client through either a generic or client-specific web form or a lead generator who generates leads on their own behalf and later call qualifies or call verifies for the lead for the client, the scenarios and compliance solutions may vary slightly but one BIG question is the same: As a lead generator, at what point am I responsible to comply with the consent requirements?

This is a very valid question that many lead generators are now asking. Although these requirements are not directed at lead generation specifically, there may still be a greater impact here that you must consider. The question becomes: If I do not collect the consumer’s express written consent for my clients, what will happen to the quality of my leads?
To fully understand the potential impact the new consent requirement may have on the quality of your leads, there are several questions you must consider.

Will current and potential clients expect me to meet this new level of consent?

Let’s think about this from the client’s perspective for a moment. If the client does not hold its lead generators responsible for collecting the consumer’s express written consent, of the leads provided, wireless telephone numbers will have to be identified at which point the client either will have to suppress all wireless telephone numbers from their calling list or dial all wireless telephone numbers manually. With the increasing use of wireless telephone numbers as the primary contact method among adults, are clients going to take the responsibility here and be willing to lose those wireless telephone numbers or reduce their sales operation to dial each wireless number manually? Not likely. Additionally, if you are a lead generator who is unwilling to meet these requests, the client will find a competitor who will.

What will clients expect from me for meeting this new standard?

The answer to this question depends on the details of the service you are providing. For a lead generator who simply generates and provides leads directly to the client, the generic or client-specific web forms that previously established a valid inquiry EBR for the client will no longer be desired. It is expected that your clients will require leads collected through a client-specific web form in which the consumer gave express written consent only be provided. For a lead generator who generates leads on their own behalf and later call qualifies or call verifies the lead for the client, the client may require a specific disclosure be included in agent scripting to establish express written consent from the consumer for that specific client to be able to call the consumer . Additional recording keeping requirements may also be required for as long as that client depends on the consent to call the consumer at their wireless number. Additional information on the disclosure requirements can be found here.

For any questions on the consent requirements, please reach out to consulting@compliancepoint.com.

CJ Arthur

Author: CJ Arthur

CJ Arthur is an Associate at CompliancePoint with a focus on direct marketing compliance. She works with clients in a variety of industries in developing and refining processes and procedures for complying with the ever-changing state and federal regulations related to direct marketing and consumer privacy law. CJ has earned her certification from the International Association of Privacy Professionals as a Certified Information Privacy Professional (CIPP/US) and has a BA in Marketing from the University of Georgia.

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