NADA: FCC closes TCPA lead generator “loophole”


Adapted from GCADA Newsletter

On December 13, 2023, the Federal Communications Commission (FCC) adopted new rules under the Telephone Consumer Protection Act (TCPA). These rules require dealers, comparison shopping websites, lead generators, and other companies that dealers may rely on to obtain a consumer's prior express written consent to receive robocalls and robotexts.

The FCC order addresses several areas, with two of the most direct relevance to dealers. Through this rule, the FCC seeks to end the practice of relying on a single consent from the consumer to apply to multiple marketing partners at once.

The FCC has amended the TCPA to clearly prohibit comparison shopping websites, lead generators, and other similar companies from asking consumers to provide a single prior express written consent to agree to receive "robocalls" or "robotexts" from any or all of the company's relevant marketing partners. The FCC is "closing this lead generator loophole" by amending the TCPA definition of prior express written consent. The new definition requires that consent "clearly and conspicuously authorize[] no more than one identified seller to deliver or cause to be delivered to the person called or texted advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice."

The FCC Report and Order takes effect 30 days after publication in the Federal Register. However, the amendments to the definition of prior express consent will not become effective until twelve (12) months after publication – likely in late 2024 or early 2025. Dealers, their attorneys, and vendor partners should review NADA's memo and the FCC Order to ensure that dealers have the requisite consent for phone or text marketing to such consumers.

Read the full report from NADA.

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