On January 24, the U.S. Court of Appeals for the Eleventh Circuit Court overturned the Federal Communications Commission (“FCC”) Rule regarding one-to-one-consent (otherwise known as “closing the lead generator loophole”) that was set to go into effect on Monday, January 27. The opinion vacates the rule in its entirety and nationwide.
The rule would have required dealers to obtain individual consent for every consumer contacted. The court ruled that the rule exceeded the FCC’s statutory authority because the new consent requirements “impermissibly conflict” with the Telephone Consumer Protection Act’s (“TCPA”) meaning of “prior express consent.”
The rule would have required dealers to ensure that any contact information used to text or call customers received from third parties (including leads from OEM management systems) met the new requirements. The FCC made clear that liability for the rule is on the caller or texter and cannot rely on the lead generator to retain proof of consent.
When the rule was finalized, NADA issued a Compliance Alert (LOG-IN REQUIRED) and memo to assist dealers with compliance. NADA also included the rule in the recently updated Dealer Guide to Federal Email and Telemarketing Restrictions (LOG-IN REQUIRED). Dealers should consult this guide for all other issues regarding compliance with the Telephone Consumer Protection Act and other regulations related to calling and texting.