A telemarketing consent rule adopted by the U.S. Federal Communications Commission in 2023 will come into effect 27 Jan. The rule requires telemarketers to obtain separate, written consent to call or text consumers using an automatic telephone dialing system or an artificial or prerecorded voice for each individual brand, rather than allowing a single consent to apply to multiple brands.
Through the rule, the FCC aims to close a loophole commonly used by lead generators and comparison-shopping sites and to protect consumers from receiving unwanted marketing communications.
For some businesses, this may have a significant impact on marketing operations. It's also an opportunity to streamline an organization's marketing communications and ensure resources are used effectively while building trust with customers.
The FCC also notes the rule provides legal certainty on how to meet the burden of proof when using third parties to collect consent.
Obtaining one-to-one consent
Under the rule, lead generators must obtain one-to-one consent for any robocalls or robotexts used in marketing outreach. Consent must be an affirmative action indicating the consumer is willing to receive these communications. Importantly, it cannot be a pre-ticked box a consumer has to uncheck to refuse the communications.
Lead generators and other third-party collection sites will need to rework consent mechanisms to ensure consent is specific to the brand, informed and opt-in. A list of "partners" with which they may share the consent will no longer suffice.
Where previously these businesses could collect a consumer's contact information and ask for their consent to share it with any number of unnamed companies that may be of interest to the consumer, businesses now must obtain individual consent for each specific brand with which they intend to share the information.
The brands shown to a consumer for consent must also be "logically and topically related," and the list must be limited to a "reasonable" number of companies. On top of that, the consent must be verified in accordance with the E-Sign Act.
While a "select all" option is acceptable, it may not be forced upon consumers and businesses should be careful of violating rules around dark patterns.
Businesses will need to review marketing lists and ensure consent was obtained in a manner consistent with the new one-to-one rule. Where that consent was obtained outside these rules, businesses will need to obtain appropriate consent prior to engaging in covered telemarketing practices.
Additionally, businesses that are collecting leads from lead generators must ensure they have the record of consent in-hand prior to using an automatic telephone dialing system or an artificial or pre-recorded voice to market to numbers on the do-not-call registry. Callers can no longer rely on the lead generator to retain consent records, it is now on the caller to obtain consent records prior to making calls and retain records of consent.
If a business collects consent from more than one brand, they will need to amend their consent mechanisms to align with the one-to-one rule.
Appropriate notification
To ensure they have obtained informed consent, businesses must include specific elements in the notification accompanying the consent request. The notification must give consumers clear information on what they are signing up for.
Importantly, the notice must include that: the individual is consenting to receive marketing content from the brands they select; SMS/MMS will be used in marketing, if applicable; pre-recorded or artificial voice messages will be used, if applicable; automated technology will be used, if applicable; AI-generated voice will be used in marketing, if applicable; other companies may call on behalf of the lead generator; and consent is not required to obtain goods or services from the brands.
Compliant marketing
When marketing based on this consent, businesses may only market products and services that are "logically and topically" related to the context of the website where the consumer provided the consent.
While the FCC declined to provide a definition for "logically and topically," it did provide an example: "a consumer giving consent on a car loan comparison shopping website does not consent to get robotexts or robocalls about loan consolidation."
In its rulemaking, the FCC indicated it does not expect this new rule to be a significant challenge for small businesses that are already likely obtaining consent for each brand, one consumer at a time.
Related rule on consent revocation
The FCC has also updated rules around revoking consent to clarify that consumers have a wide berth when opting out of marketing they previously consented to.
In April 2025, a new rule goes into effect that underscores consumers can revoke consent in any reasonable manner. Callers may not require consumers to use specific language to revoke consent for autodialed text messages or calls — such as "stop" or "end" — they just need to communicate it in a way that can reasonably be read as a revocation.
The FCC rule states, "any revocation request made using an automated, interactive voice or key press-activated opt-out mechanism on a robocall; via a response of 'stop' or a similar, standard response message sent in reply to an incoming text message; or submitted at a website or telephone number provided by the caller to process opt-out requests constitute examples of a reasonable means to revoke consent."
In cases where a consumer uses other methods to revoke consent, the reasonableness test relies on whether the consumer had a reasonable expectation that their request would be received.
In addition, marketers must honor do-not-call and consent revocation requests as soon as practicable, and at least within 10 business days. These rules align with those related to email marketing under the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003.
Under the rules, marketers can reply to text messages once confirming the request or, if they send multiple categories of texts, can clarify whether the request is for all or only specific text messages. Importantly, lack of response to a clarification message requires the marketer to withdraw consent from all text marketing in their program.
What does this mean for businesses?
These changes underscore the FCC's focus on ensuring consumers have control over the marketing they receive. They may also indicate a renewed vigor to enforce against businesses that violate these rules. To ensure compliance, businesses should:
- Ensure consent forms include required elements and that consent is brand specific.
- Make sure privacy notices accurately detail how the business collects, uses, and shares personal information.
- Businesses that purchase leads should review existing consent to determine whether it complies with the new rules and obtain new and specific consent from existing leads where non-compliant, obtain consent records from third-party sellers for existing leads and prior to autodialing consumers moving forward, and assess lead generators' practices to ensure compliance with the new rules.
- Review the consent revocation process to ensure systems and processes recognize all reasonable methods of revoking consent.
- Train staff. These rules are a marked change in how lead generation has been conducted historically, make sure marketing teams are trained up.
Jodi Daniels, CIPP/US, is founder and CEO of Red Clover Advisors.
