Upcoming Telephone Consumer Protection Act (TCPA) Changes in 2025

The Telephone Consumer Protection Act (TCPA), enacted in 1991, protects consumers from unwanted telemarketing calls, robocalls, and texts.

New FCC Consent Rule

On January 27, 2025, the Federal Communications Commission’s (FCC) new consent rule for robocalls and robotexts will take effect. The FCC aims to close the “lead generator loophole” by requiring marketers to obtain “one-to-one” consumer consent to receive telemarketing texts and auto-dialed calls. While the rule primarily targets lead generators, it could affect any business that relies on consumer consent for such communications or purchases leads from third parties.

Under the rule, businesses must clearly and conspicuously request and obtain written consumer consent for robocalls and robotexts from each individual company. Companies can no longer rely on a single instance of consumer consent that links to a list of multiple sellers and partners. Instead, individual written consent will be required for each marketer. Additionally, any resulting communication must be “logically and topically related” to the website where the consent was obtained.

To meet this requirement, businesses may allow consumers to affirmatively select which sellers they consent to hear from or provide links to separate consent forms for each business requesting permission to contact them.

New Consent Revocation Rules

Another change takes effect on April 11, 2025, when the FCC’s new consent revocation rules for robocalls and robotexts are implemented. These rules allow consumers to revoke prior consent through any reasonable method, and marketers may not designate an exclusive means for revocation. Reasonable methods include replying “stop,” “quit” or similar terms to incoming texts, using automated voice or opt-out replies, or submitting a message through a website provided by the caller.

Marketers must honor revocation requests within a reasonable timeframe, not exceeding 10 business days. After that period, no further robocalls or robotexts requiring consent may be sent to the consumer.

Preparing for Compliance

To comply with the January 27, 2025, one-to-one consent rule and the April 11, 2025, consent revocation rule, lead generators and businesses that use or facilitate robocall and robotext communications should:

  • Review their current consent and revocation practices.
  • Ensure compliance by updating policies before the deadlines.
  • Examine where consumer leads are being obtained and adjust policies for using this information to meet the new requirements.

This advisory provides only a summary of the upcoming changes to the Telephone Consumer Protection Act.

The FCC Approves an NOI to Dive Deeper into AI and its Effects on Robocalls and Robotexts

AI is on the tip of everyone’s tongue it seems these days. The Dame brought you a recap of President Biden’s orders addressing AI at the beginning of the month. This morning at the FCC’s open meeting they were presented with a request for a Notice of Inquiry (NOI) to gather additional information about the benefits and harms of artificial intelligence and its use alongside “robocall and robotext”. The following five areas of interest are as follows:

  • First, the NOI seeks, on whether and if so how the commission should define AI technologies for purposes of the inquiry this includes particular uses of AI technologies that are relevant to the commission’s statutory response abilities under the TCPA, which protects consumers from nonemergency calls and texts using an autodialer or containing an artificial or prerecorded voice.
  • Second, the NOI seeks comment on how technologies may impact consumers who receive robocalls and robotexts including any potential benefits and risks that the emerging technologies may create. Specifically, the NOI seeks information on how these technologies may alter the functioning of the existing regulatory framework so that the commission may formulate policies that benefit consumers by ensuring they continue to receive privacy protections under the TCPA.
  • Third, the NOI seeks comment on whether it is necessary or possible to determine at this point whether future types of AI technologies may fall within the TCPA’s existing prohibitions on autodial calls or texts and artificial or prerecorded voice messages.
  • Fourth, NOI seeks comment on whether the commission should consider ways to verify the authenticity and legitimately generate AI voice or text content from trusted sources such as through the use of watermarks, certificates, labels, signatures, or other forms of labels when callers rely on AI technology to generate content. This may include, for example, emulating a human voice on a robocall or creating content in a text message.
  • Lastly, seeks comment on what next steps the commission should consider to further the inquiry.

While all the commissioners voted to approve the NOI they did share a few insightful comments. Commissioner Carr stated “ If AI can combat illegal robocalls, I’m all for it” but he also expressed that he does “…worry that the path we are heading down is going to be overly prescriptive” and suggests “…Let’s put some common-sense guardrails in place, but let’s not be so prescriptive and so heavy-handed on the front end that we end up benefiting large incumbents in the space because they can deal with the regulatory frameworks and stifling the smaller innovation to come.”

Commissioner Starks shared “I, for one, believe this intersectionality is clinical because the future of AI remains uncertain, one thing is clear — it has the potential to impact if not transform every aspect of American life, and because of that potential, each part of our government bears responsibility to better understand the risks, opportunities within its mandate, while being mindful of the limits of its expertise, experience, and authority. In this era of rapid technological change, we must collaborate, lean into our expertise across agencies to best serve our citizens and consumers.” Commissioner Starks seemed to be particularly focused on AI’s ability to facilitate bad actors in schemes like voice cloning and how the FCC can implement safeguards against this type of behavior.

“AI technologies can bring new challenges and opportunities. responsible and ethical implementation of AI technologies is crucial to strike a balance, ensuring that the benefits of AI are harnessed to protect consumers from harm rather than amplifying the risks in increasing the digital landscape” Commissioner Gomez shared.

Finally, the topic around the AI NOI wrapped up with Chairwoman Rosenworcel commenting “… I think we make a mistake if we only focus on the potential for harm. We needed to equally focus on how artificial intelligence can radically improve the tools we have today to block unwanted robocalls and robotexts. We are talking about technology that can see patterns in our network traffic, unlike anything we have today. They can lead to the development of analytic tools that are exponentially better at finding fraud before it reaches us at home. Used at scale, we cannot only stop this junk, we can use it to increase trust in our networks. We are asking how artificial intelligence is being used right now to recognize patterns in network traffic and how it can be used in the future. We know the risks this technology involves but we also want to harness the benefits.”

Boof!: Pro-Kavanaugh “Robo-Texts” Trigger Potentially Massive TCPA Class Action against Faith and Freedom Coalition, Inc. in Florida

Apparently the Faith and Freedom Coalition (“FFC”)–allegedly some sort of Conservative-leaning PAC– blasted Florida residents with texts urging Senator Bill Nelson to support the Kavanaugh confirmation. The text (allegedly) read as follows:

This is Ralph Reed. A good man is under attack & needs your help. Call Sen Bill Nelson TODAY & tell him to confirm Brett Kavanaugh.

Subtle.

Similar texts were allegedly blasted to a bunch of folks in the area, none of whom–according to the lawsuit–consented to receive those texts.

The complaint–filed Monday in the Southern District of Florida by an agitated citizen named Shehan Wijesinha and found here Wijensinha v FFC—  alleges a class of all persons within the United States that were sent a text message by the Defendant without prior express consent. It is brought by noted TCPA class action attorney Manuel Hiraldo of Hiraldo, P.A.

The TCPA prevents text messages–including political texts–to cellular phones without consent. If the Defendant is found liable for sending the texts under the TCPA it may face exposure as high as $1,500.00 per text. Given the number of texts allegedly at issue in the suit this may cost the FFC many millions of dollars to resolve, a fact that may prompt the FFC to need a Devil’s Triangle this afternoon to unwind. (What? Its a drinking game!)

A recent Wyoming lawsuit found a state corollary law similar to the TCPA unconstitutional as applied to political messages–and you can bet your bottom dollar that the folks at FFC will assert a First Amendment challenge here.

We’ll keep a close eye on this one for you.

 

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This post was written by Eric Troutman of Womble Bond Dickinson (US) LLP.