S3 E3: Telemarketing Regulations: What to Expect in 2025

Audio version

*** On January 24th, 2025, the 11th Circuit Court of Appeals vacated the FCC’s one-to-one consent rule three days before it was scheduled to go into effect. Read the court’s opinion here.***

Telemarketing Regulations: What to Expect in 2025

Transcript

Jordan Eisner: Hello there, everybody. I’m here today with Tony Jarnigan. This is Compliance Pointers, brought to you by CompliancePoint. No surprise, a consulting firm and marketing compliance in a variety of different areas. And Tony is a consultant with the team, been here over two years now.

Tony Jarnigan: Almost three, Jordan.

Jordan Eisner: Almost three. All right. I’m going to update my notes. Almost three. He’s been in the industry more than 20 years. He’s worked in-house for different corporations, working on that sort of thing for 10 years at a time. Big vacation organization. We’ve probably disclosed previously, Tony, who you work with. No surprises. They can look at old podcasts and get that information that way.

But we’re going to be talking about a topic that you and I talked about around this time last year, I think. So we’re dusting it off. But now, for the time being, we’ve got a date at the end of the month, January 27th, for the FCC rule change, one-to-one consent.

We’ve got a new regime, I guess, from a presidential standpoint. So there are questions to be asked and topics to cover. And so we’re going to dive into that today.

So let’s start with just that, Tony. New administration. What sort of effect could that have on telemarketing regulations and how the court rules in court cases?

Tony Jarnigan: Well, I think it has a potential to play very importantly in our world. So this is a good place to start. I just don’t know if you can talk a lot about our current world, goings on in our world, without discussing those political underpinnings, if you will. And by the way, I’m a political science major. So this fascinates me. I can talk about it ad nauseum.

So as you said, much of what we see going on right now is centered on what’s actually considered to be the proper role of administrative agencies, like the FTC and the FCC. And both of those regulate our world, right?

The FTC promulgates the Telemarketing Sales Rule. The FCC regulates all the other elements of the TCPA. So there’s this notion that they’re supposed to just be writing rules to enforce the statutes, that they’ve become too powerful. And in fact, making new law instead of regulating and enforcing existing law.
And we’re used to hearing this about the courts, right? Especially the Supreme Court, as is sometimes accused of making law instead of adjudicating the law.

But we’re hearing about it with regard to administrative agencies now. And with the incoming administration, there’s this new proposed Department of Efficiency. And you’ve got appointees, high-profile appointees that are wanting to cut the size and the power of administrative agencies. So whether they’ll affect the FTC and the FCC or not, as opposed to a lot of these other agencies that already appear to be on the cutting board, if you will, only time will tell.

But federally, though, in that regard, I think that another thing to keep our eye on is the fact that you’ll recall, Jordan, that we’ve talked about this before. So earlier last year, now, Congress had proposed, about a year ago, Congress had proposed a new law called the Do Not Disturb Act. And it contains some rather startling elements.

Two of the most notable were that it would redefine or define what robocalls such that many more systems and platforms and phone calls would be in scope of the regulation of that new law. It would also reduce calling hours. Currently, federally, you can call 8 a.m. to 9 p.m. And that law would propose to reduce that calling time from 9 a.m. to 5 p.m. So big potential impacts.

I think that that’s something that could certainly be reintroduced. You’ve got a Senate Majority Leader now with John Thune, who’s been involved in telemarketing issues in the past, was one of the sponsors of the TRACE Act, if I’m not mistaken. So I think that telemarketing seems to be something that’s near and dear to his heart.

And who knows? We always hear a lot, right, that if there’s one thing that maybe politicians can agree on and the parties agree on, it’s trying to combat telemarketers.

Jordan Eisner: Yeah, there you go. And I think a lot of that makes sense and would be aligned with listeners’ expectations. Another thing that people are probably chiming in this podcast to hear about is one-to-one consent goes into effect at the end of this month. January 27th, my brother’s 40th birthday. Remind listeners what they need to know about that.

Tony Jarnigan: Well, first of all, I noticed that you said it’s going to take effect. And we might need to temper that a little bit. It’s set to take effect on January 27th. There’s hot off-the-press information. There are a lot of people waiting with anticipation on the edge of their seats about what’s going to happen in the next 11 days from now.

So as you point out, though, as we know, the rule FCC has said that consumers must consent to receive marketing calls from only one seller at a time with those calls being logically and topically related to the website that’s soliciting the consent.

But it could be in jeopardy. The Insurance Marketing Coalition or IMC, it’s like an advocacy group for the insurance industry, filed a petition almost immediately after the FCC came out with the opinion or the rule. They filed a petition challenging the rule when the 11th Circuit Court of Appeals, are arguing what we’re sort of talking about earlier in regard to agencies, that the whole rule exudes the FCC authority, violates the First Amendment, it’s arbitrary, etc., etc.

The FCC has defended its position, saying that it aligns with the DCPA intent, it addresses problematic lead generation practices, and basically nothing to see here other than we’re just enforcing the rule.
In fairness to the FCC, I’m not going to make any political comments either, but to the extent that Congress hasn’t continued to act in situations where technology changes and whatever changes may occur, and the FCC and FTC, they’re the ones that’s getting the complaints from the consumers, right? So they sort of feel like they’re compelled, I think, to step in and fill the gap, as it were.

But anyway, so to go ahead and move a little bit forward, the case has got to the point in December where the three panel or the three-judge panel, there’s 12 justices on the court, but it’s a panel of three, all Trump appointees, by the way, they heard oral arguments. The oral arguments are out there in the public domain. If you’re having trouble falling asleep at night, I recommend you could listen to those and they’ll probably put you right out. Now, I think it’s actually riveting myself.

But all indications are that given the thrust of the questions, that they seem to be sympathetic to the IMC’s case. And so it left the industry very hopeful that there could be a favorable ruling that would do one of a few things. One, they could issue a stay, which means that they would pause the implementation of the rule, pending further consideration, or they could vacate the rule entirely and agree with everything that the IMC has said, or it could uphold the rule.

So it looks like they’ve agreed to expedite the ruling. And again, we’re talking, what, 11 days from now? So there’s a lot of people, as I said, on the edge of their seat, waiting with anticipation to see if something’s going to happen in the next 11 days.

Obviously, we’re still recommending that all of our clients and businesses comply if they haven’t already taken measures to comply. The FCC, by the way, has published a set of FAQs to help with compliance. So I would recommend that our listeners take a look at those.

But also, I’d be remiss if I didn’t throw this out there as well. We would recommend, even if the ruling is vacated, that businesses still attempt to comply. Because we’ve heard from the FTC, and I was at the conference where the FTC commissioner said this, that their position is that from a do-not-call perspective, the one-to-one rule has always been in effect. So now that this has sort of come to the fore, and there are more people talking about it, we would expect to hear and see more cases of people suing, not necessarily under an ATDS standpoint, but an automatic telephone dialing system standpoint, but a do not call standpoint. If I’m on a do not call list, you needed to have gotten my consent on a one-to-one basis to call me in the first place. So there’s all of those considerations.

Jordan Eisner: Yeah, something that organizations like many other things in this space need to continue to monitor.

Consent revocation rule changes go into effect on April 11. What is significant about that?

Tony Jarnigan: Well, we’ve talked about this one previously, right? So the most significant thing here is to make sure you’re treating calls as texts and texts as calls. If someone opts out of one, you should opt them out of the other.

So I think that most of the cases that we’ve been seeing recently, a lot of them I’ve been seeing and writing about are about texting.

And the FCC has said that there are seven words. Wasn’t it George Carlin had some comedy routine about seven words that anyway, this is…

Jordan Eisner: I don’t know. But I assume we probably need to talk about it offline.

Tony Jarnigan: We do need to talk about it offline. That’s exactly right.

But there’s seven words at minimum that they’ve said that you should treat as a reasonable intent to opt-out. And I’ll read those, stop, quit, end, cancel, revoke, unsubscribe, and opt out. Those are different than Carlin’s seven words.

But if there’s a typo or if the person writes a statement, such as we saw one recent case where the plaintiff had said, hold on to your seat Jordan, no, duck off. And that was considered to be an intent to opt-out. So businesses need to really be making sure that they’re monitoring those types of things. If it’s a typo, if it’s a statement or whatever to make sure that they opt people out of those.

You can send a one-time confirmation as we’ve talked about before. It has to be done within five minutes. It can’t be any further. And I think this is an important point. It can’t be any further marketing solicitation. Or as the FCC said, you cannot seek to persuade the recipient to reconsider their opt-out. You and I have both probably seen opt-outs.

We’ve seen the confirmation after we’ve opted out where it’ll say to opt back in. If you change your mind or opt back in, press one. Is that seeking to persuade them to reconsider? Probably so. And we would advise not doing that.

Jordan Eisner: Yeah, I mean, all these things are in the eye of the beholder, but consumers can probably figure out how to opt back in.

Tony Jarnigan: That’s exactly right.

Jordan Eisner: Without the reminder in the opt-out.

Tony Jarnigan: They opt in very easily, right? That’s the whole thing about this.

Jordan Eisner: Usually, yeah, unknowingly.

Tony Jarnigan: Right, exactly right. So it’s easy to opt in. And that’s the whole point about this is the FCC wants to make it as easy to opt out as it is to opt in.

Jordan Eisner: That seems fair and fitting. Well, on that note, tell me what this is. I’m hearing about consent, verbal consent over the phone not being express written consent. Right, implied consent and different levels of expressed consent. But express written consent is very specific about the disclosures that need to be made and the components of it. So maybe a quick recap on what express written consent is. And then the question is, what sort of changes might we see about giving express written consent verbally?

Tony Jarnigan: Yeah, well, to address the first part about getting or now all of a sudden not being able to get the equivalent of express written consent verbally on a phone call, I think it’s important to point out that, again, I know here, it sounds like I’m an FCC apologist, but such is not the case necessarily. But you can’t blame this on the FCC, by the way. You know, after imposing their requirements that express consent be in writing, it seemed for years that they agreed, and I believe they still do agree, that if someone is on a call with you on a recorded line, of course, because you need to make sure that you can prove it, right? But on a recorded line, if your agent goes over all of the elements of what they’ve said is required as part of expressed written consent, that is, did you authorize marketing calls and tax at this number from ABC Company, including through the use of automated technology, you understand consent is not required to purchase, and you get an affirmative yes, again, on a recorded line, that that would be the equivalent of expressed written consent.

But in this case, again, it’s not the FCC that is changing the rule. It’s a court now that has said, sort of upended that. The federal court in Maryland has said that it’s not sufficient under the E-Sign Act, which requires certain disclosures to be in writing, literally in writing. So you see here, again, it’s a court, not the FCC. And the decision is being appealed.

You know, at first we thought, well, this is sort of ingrained in our mindset that surely it’s going to be overturned. But all the, pardon me, all the indications are recently that it looks like that it could change and that your consent would need to be in writing.

Jordan Eisner: Wow, that would be a big change. You know, we’ve been doing this CompliancePoint for a long time and have certainly advised organizations how to gain expressed written consent on the phone.
Well, that’s probably a good stopping point. There’ll be more to come on this.

Tony Jarnigan: I thought this is an important point to make. You know, if this is one of those deals where since it’s the first of the year, right, that it’s a good time to take a look behind us and to look in front of us.

One of the things that I personally sort of see as something that we’re going to see movement on and that is what I consider to be a gap between how the Supreme Court of the United States defined an ATDS and what the rules are. So you know, all these rules that we’ve been talking about, right, they apply to the use of automated technology. And we have a lot of clients that say, well, I don’t use an ATDS or I’m dialing manually. And I just thought it was important to set some things clear here about that.

Just because you dial manually with fat finger dialing or click to dial in a preview-type mode does not mean that you’re not using an automated system under state law with mini TCPAs. And by the way, we just saw a new one come out in South Carolina, another mini TCPA that broadens the definition of what an automated system is.

And those states have tended to define an automated system as one that selects or dials a number with that or being the keyword there. Florida walked back there and changed it to and, but you know, Oklahoma, Maryland, and now South Carolina. West Virginia had one proposed and apparently went by the wayside, but now South Carolina has proposed one using the same or language.

So you know, again, even if you’re fat finger dialing, if your system selects that next record, you’re probably in scope for the laws in those states.

Likewise, even if you’re dialing in a predictive mode, it doesn’t necessarily mean that that’s an ATDS on the federal level under the TCPA because of the Supreme Court’s Facebook decision. And there are also elements of unsettled law there. Definitions could change as we just talked about with the Do Not Disturb Act.

So point being here, I think that there will be either because of states stepping in to fill the gap or whatever. I think there will be, or this new Do Not Disturb Act could come back, is there will be an attempt to sort of close that what I see as a gap between what the law is intended to do and, you know, what people are actually, what people are doing.

So I just think that more types of, because at the end of the day, consumers, they don’t know if they’re being called with automated equipment or not. They just know that they’re getting telemarketing calls that they don’t like and they want them to stop. So I just think there will be more of an attempt to bring more types of dials in the scope of these regulations. Hope that makes sense.

Jordan Eisner: Good information. Tony, thank you as always. For joining and providing the knowledge you’ve got there and keeping our listeners abreast of what they need to know in 2025 and perhaps beyond.

So for everybody listening, if you are a regular listener, you know where to find us, CompliancePoint.com. Tony and I are both on LinkedIn. Many, many channels you can reach out to us. We’d love to hear from you. You can inquire.

And if you like what you’re listening to, leave us a review. Tell your friends. Until next time. See you guys or we don’t see them, but you’ll see us and hear us later.