At the end of 2023, the FCC officially modified the TCPA’s definition of express written consent and set an implementation deadline of January 27, 2025. Here’s what you need to know and how to make sure you’re in compliance by then.

How did the definition change?

There are two major ways that the definition of express written consent has been tweaked. The first is the aforementioned rule of one-to-one consent. The term express written consent now means an agreement “that clearly and conspicuously authorizes 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.” And the second major change is that “calls and texts must be logically and topically associated with the interaction that prompted the consent.”

What do these changes mean?

What do these definition changes mean for you? Let’s start with the one-to-one rule. This rule means that the obtaining of express consent must happen directly between the customer and the company. Express consent can no longer be obtained by a marketing company for a business that they work with or by a sister company for a brand they are affiliated with. These are both currently acceptable methods for obtaining consent, but beginning next January they won’t be any longer. Likewise, marketing companies can currently use one consent disclosure or one signature (or e-signature) to obtain consent for multiple companies to contact somebody. Under this new rule, they will no longer be able to do this either. Each instance of consent being given must happen between a customer and the single company to which they are giving consent to be sent messages sent using an ATDS or an artificial or prerecorded voice. This does not mean that marketers and sister companies can’t send customers directly to the company and the form through which they can obtain consent—it just means that this extra step will need to be implemented.

The second change says that any communications the customer receives must be “logically and topically associated” with the instance of consent being given. Say, for example, you are interested in opening a checking account at a bank and give consent to the bank to contact you and discuss your options. In the past, the bank may have used your express written consent to contact you about all of their products. But under this new rule change, if you have expressed interest in opening a checking account, the bank can no longer consider your consent applicable to receiving communications about mortgages or small businesses loans, as these products are not logically associated with a checking account. The easiest way to ensure compliance with this change is to only contact customers about the specific product or products they expressed interest in when providing consent.

What needs to happen by the implementation date?

After January 27, 2025, all customers who receive marketing communications sent using an ATDS or an artificial or prerecorded voice must have given you one-to-one express written consent. If consent was obtained via a different method, such as a marketing company obtaining consent for a customer to receive communications from multiple companies, this consent will no longer be valid and contacting such persons will be liable under the TCPA. So over the next nine months, it’s critical that all express written consent be reviewed to ensure compliance with the new rule. The consent of any customers that was not obtained using a compliant method must be considered null and void and steps should be taken to renew this consent in a compliant manner.

Likewise, the types of communications you are sending to customers need to also be evaluated in conjunction with the manner and context through which consent was obtained. If necessary, steps should be taken to limit communications in order to comply with the “logically and topically associated” portion of the rule.

Have questions about TCPA compliance? Send them over and we can address them in a future blog post!