Reminder: FCC’s One-to-One TCPA Consent Rule Takes Effect January 27, Raising Enforcement and Litigation Risks
The Federal Communications Commission’s (FCC or Commission) new Telephone Consumer Protection Act (TCPA) one-to-one consent rule takes effect in less than one week – on January 27, 2025. The new rule, once effective, will impose new standards for obtaining prior express written consent for certain marketing calls and text messages. As such, it will require significant updates to consent disclosure and collection processes for companies, including but not limited to comparison shopping platforms, that currently collect prior express written consent for multiple calls.
As companies are preparing for this new rule to take effect, today, an industry group filed a request that the Commission “stay the effective date of the one-to-one rule until March 18, 2025 and re-open a comment period to consider issues of fact, law, and policy raised by the rule.” As of this writing, the FCC has not acted on this petition.
Below, we briefly recap the new rule, and discuss the impact it will have once effective.
Summary of New One-to-One Consent Rule
First, the new one-to-one consent requirement will obligate parties making marketing calls using an automatic telephone dialing system or an artificial or prerecorded voice to obtain prior express written consent “one seller at a time.” In other words, a single consent must only apply to a single seller.
Second, the new updated rules include requirements for the consent be “clear and conspicuous,” and for the calls and texts initiated pursuant to the consent to be “logically and topically associated with the interaction that prompted the consent.”[1]
Impact on Companies Obtaining Prior Express Written Consent
Companies engaged in outbound calling and texting should assess their current TCPA compliance plans and disclosures to evaluate whether changes need to be made to comply with the new prior express written consent disclosure requirements. The operational impact will likely be significant, regardless of whether the new rule becomes effective (as scheduled) on January 27, 2025, or if the FCC grants the petition for stay. For example, in many instances, the operational changes necessitated by this rule will not be simple fixes – they may require companies to overhaul their consent collection flows to ensure that prior express written consent is only provided for one marketer at a time.
The TCPA has been a source of widespread litigation for years, due to the law’s private right of action and statutory damages, and we expect this new rule to drive an uptick in both TCPA lawsuits and settlement demands.
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Wiley has a deep and experienced TCPA/Robocalling and Privacy Litigation & Investigations bench that can help navigate these evolving issues. This TCPA update is one of a number of privacy-related developments to watch in 2025, as we discussed here. For more information about the FCC’s upcoming compliance deadline and other privacy-related developments, please contact one of the authors listed on this alert.
[1] 47 C.F.R. § 64.1200(f)(9).
