Webinar ·

Ensuring compliance in the new TCPA era

The recent changes to the Telephone Consumer Protection Act (TCPA) have sent shockwaves through the industry, making it more important than ever to understand and adapt to the new rules. To shed light on these changes and help businesses navigate compliance in the new TCPA era, Evocalize hosted an insightful webinar featuring two industry experts: Matthew Marx, CEO of Evocalize, and Puja Amin, partner at Troutman Amin and one of the nation’s leading TCPA lawyers.

This webinar delves deep into the implications of the new FCC rules for lead generation, which are set to take effect in January 2025. These changes will significantly impact how businesses collect, use, and share consumer information, making compliance a top priority for marketers and legal teams alike.

Key takeaways

Here are the key takeaways from this webinar around compliance in the new TCA era:

Preparing for compliance in the new TCPA era

As the January 2025 deadline approaches for the new TCPA rules to take effect, businesses need to start preparing now. Here are some key steps to take:

These steps are just the beginning of ensuring compliance in the new TCPA era. For more detailed guidance and resources, check out the links provided below. We also strongly encourage you to watch the full webinar recording, where our experts dive deeper into these topics and provide invaluable insights to help your business navigate these changes successfully.

Remember, while the new rules may seem daunting, compliance is achievable with the right approach and resources. Start preparing now to protect your business and maintain effective lead generation practices in this new regulatory landscape.

Resources

Transcript

Justin Ulrich
Well, what’s up everyone, and welcome to our webinar around ensuring compliance in the new TCPA era with an invaluable ask the attorney Q&A session at the end. I’m your host, Justin Ulrich. I lead the marketing team here at Evocalize, where we fully automate local digital marketing for multi-location businesses.

Before we jump in, just wanted to let you all know that we will be answering your questions throughout the call today, as well as have a separate Q&A session at the end. Please feel free to leave all your questions in the comments section, and we’ll get to as many of those as possible. Any that we don’t get to, we’ll try to answer after the actual session today.

Today, we have with us Puja Amin, partner at Troutman Amin, the leading TCPA law firm in the nation, and Matthew Marx, CEO at Evocalize. Matt, why don’t we just go ahead and start with you, maybe running us through a brief background of yourself and Evocalize, and then maybe kick it over to Puja to do the same?

Matthew Marx
Yeah, thanks, Justin. Appreciate it. Appreciate all the listeners.

So that I don’t forget to say it, and our attorneys don’t kick me after this, we are not your attorney. Actually, one of us may be your attorney, but we can’t guarantee that. And so this is an information session, and we’re going to try and educate to the extent we can.

Please talk with the counsel that you’re engaged with in order to really dive deep into this stuff as you get into it. So that I don’t forget to say it, I’m going to do the obligatory. I’m sure Puja would keep me in line later if I missed it.

But a little bit of background on me and Evocalize. I’m the founder and CEO of Evocalize. Justin gave a little bit of a brief on us, but just in a few words why this topic is super important to us around the TCPA and changes around lead generation.

We have developed a marketing technology, marketing automation platform for lead generation and other demand functions that ensures, allows you to work with your legal team hand-in-hand as marketers to engineer compliance and enforce compliance into the entire organization’s lead generation, demand generation efforts. 

Even in cases where you have hundreds of thousands of agents or you have franchisees that are out there doing their own things, because there are a lot of ways that we’ll talk about in this session and we’ve talked about before that you can get yourselves in trouble at the corporate group from folks not knowing exactly what they need to do here. And this gets pretty complicated as you’ll hear from Puja.

Puja, you have a super exciting and interesting background, especially relevant for this. You’ve done a prior session with your partner, Eric Troutman, was really well received. You bring a super interesting lens to this. Can you give a little bit about your background before we dive in?

Puja Amin
Absolutely. So I’m Puja Amin. I’m also known as Queenie of tcpaworld.com.

So I started my career off working for Eric in the TCPA space and handling litigation a number of years ago. Then thereafter, I went in-house to loanDepot where I handled all of their marketing compliance, including their TCPA litigation, their compliance, and I kind of just oversaw all of their advertising outreach to make sure that they were buttoned up. 

And then subsequently, I went and became general counsel of a lead generation company. So on the flip side, I was on the buyer’s side. Then I went on the seller’s side. And then after I went and joined up and partnered up with Eric Troutman, the czar of TCPA World.

And now, as most of you folks know, we run Troutman Amin here where we handle TCPA litigation, compliance, advertising, and privacy compliance needs for all our clients.

Background of the TCPA

Matthew Marx
You all are busy these days. You all are really busy, Puja. So thanks for taking the time out on this. I think it’s really important to get people up to speed because to me, you live and breathe this every day. We live and breathe this a decent amount of time. But a lot of folks don’t, right?

And so I know we have a broad swath of folks joining the call. We have counsel. We have attorneys in various shapes and forms. And we have folks that may be new to this topic. So I thought before we get into the really detailed aspects of some of these changes that are coming and the reason we’re trying to get the word out about this so far and wide, I will give a 101 class on this because there’s one attorney on this call and it is not me. 

So I’ll give a little bit of…and so bear with me, attorneys and those that are super deep into this. I know a bunch of folks on the call. Personally, I know this is going to be a level set for you. But I’m going to start over here and give you the 101. 

So what are we talking about here? We’re talking about the TCPA, the Telephone Consumer Protection Act, originally passed back in 1991. Yes, long time ago when we like tethered to our cords on walls in the house. And it actually was based on a series, as Puja knows better than I do, it was based on a series of laws running back 50, 60 years. And it was intending to protect folks against spam calls and other things coming to your house.

And in those days, we didn’t all walk around with this every day, a telephone in our pocket. We had a wall phone and it rang in the entire house. So that was the impetus or the origination of the law in 1991. And it’s been kind of updated here and there over the years. 

We have a major change that was passed last December. And I want to get into the basics of that. And it’s coming. So I don’t forget to mention it. Enforcement is coming in January of 2025. So getting pretty darn close given the extent of what this will mean to the industry. OK. So that’s a little bit of the law.

What are we talking about here?

No, just a little bit. I want to get people up to speed for those that aren’t experts, Puja, before we dive into the details on what are they trying to do? And keep me honest, make sure I’m not going off the rails, right?

So one thing that this working group that was formed and kind of digested this issue of spam calls and how do we protect consumers for your phone ringing all day long now that it’s in your pocket and getting texts all day long. They kind of this working group was formed and a few years ago and tried to get really deep into this because consumers were starting to complain about spam to their cell phone. 

And so the working group was formed underneath the FCC and it basically came to pass a series of an order that kind of instructed or adjusted the TCPA law and a couple of key ways that we’re going to touch on today and a lot of things that go beyond maybe what we’re going to hit on directly, but you need to be aware of.

The couple of key things that I would say before we get into the meat, one, they have attempted to close the lead generator loophole. So just very quickly, for those who are new to this, what do they mean by lead generator? What does that mean?

Simply, these are portals and marketplaces that have kind of grown up. You use them every day, rate comparison websites in the mortgage world and real estate websites in the real estate world, and they cross lots of industries. And if you rewind time, these folks built a great business by doing lots of marketing, getting people in, providing a service where you can compare providers or compare data or compare rates.

And then they gather, they’ve historically gathered your lead on some kind of a lead capture form. And then they’ve gone around and sold it to lots of folks who wanted that intent or wanted the customer data in order to sell a service, right? And what happened over the past decade is that has, you know, each time they sell the lead, they get money, right?

And so these aggregators have wanted to make in the constant pressure, right? They’ve wanted to make more and more and more money. So they’ve sold this to more and more people or service providers over the time, right?

And so what’s happened over the years is that this thing has caused this “race to contact” because if a lead goes to multiple parties, you want to be the first one as the buyer of a lead. And so there’s this whole ecosystem, as many of the folks on this call know very well, it’s been built up around. So the intent here is to close the lead generator, lead aggregator loophole.

What are the new TCPA laws?

And they’ve put a couple rules in place to try and do this. And then we’ll jump. I want to get Puja’s take on this from a background perspective.

A couple key things around this law. One, they’re trying to enforce a one-to-one consent for lead generators. Meaning, if I do a bunch of marketing as a marketplace in the old days, I could gather that lead first and then monetize it, sell it to a bunch of folks. Maybe with some disclosures on a separate website about who I might sell that to. But that was kind of off the radar, right? For the consumer.

Now, some of the examples the FCC has used are actually blank checkboxes before you capture the lead as a lead generator, where the consumer would be informed of who might call them or who might get the lead. And they have to opt in one by one. So that’s one thing.

Contextually, logically, & topically related

The second thing, and again, Puja can slap me by getting this wrong. Second one is, they’re super important to you, we think, that the lead has to be contextually, logically, and topically related. So contextual to the marketing and to how the lead came in.

So if you market on something like mortgage, you need to offer services and capture consent and reach out for folks related to mortgage, right? That’s a high level. I know Puja’s probably thinking, man, there are a bunch of exceptions to that, Matt.

But generally, logically, and topically related is a requirement in the new world. That was not always true, right? So those are a couple key parts of this new law that we want to drop into with that.

I’m going to stop exit stage left on the 101 rule. And I’m going to let Puja clarify, add anything, tell us why this is a big deal, if it is. And then we’ll get into some Q&A. Does that work, Puja?

Why the TCPA is a big deal

Puja Amin
That works perfectly. So yeah, Matt, let’s start off by, you know, kind of reiterating what you said about the TCPA being this federal statute that governs the outreach you folks are doing to consumers via telephone across the country, right? So if you don’t know the TCPA and you’re doing outreach to consumers via the phone, you ought to, because the TCPA has huge violations.

It’s the biggest cash cow in our country, as most of you folks probably know. TCPA lawsuits are up 40%. With the TCPA violations, you carry $500 bucks per call or text and up to $1,500 if found willful.

Now you take that 500 times each call and each text that you’re making and fines can build up pretty quickly. You know, the TCPA is, it’s bigger than your competitors. It’s bigger than market changes.

It’s a bigger risk than any regulatory risk that’s out there. The penalties are just massive, right? There’s private right of action. There’s personal liability, class actions with four-year statute limitations. And now with this new one-to-one ruling, we predict, and it will certainly come, come January, now there are more low-hanging fruits for plaintiff’s attorneys to file new lawsuits. 

So on a high level, right, the TCPA, what does it prohibit and what does it permit?

The TCPA prohibits telemarketing calls using regulated technology, which includes pre-recorded calls, RVMs, artificial voice, right, without the prior expressed written consent of the consumer. 

And the TCPA’s DNC regulations prohibit calls or text messages to numbers on the national DNC list without prior express invitation or permission, or without what we call an established business relationship, an EBR, or an inquiry. 

What the FCC has done, and as you correctly pointed out, Matt, as a result of really the sloppy standards, the lack of compliance in the lead gen industry, lead generators kind of taking advantage of consumers, what the FCC has now done with this new rule that’s in effect January 27th, 2025, coming up, they’ve taken that defense that you have when you’re using regulated technology, which is your express written consent, and they have narrowed it. 

They have narrowed it pretty drastically, and as you, you know, on a high level, as you laid out, Matt, they have narrowed it in two very significant ways, which we’ll get to here in a bit, but you need to understand if you are making calls, if you’re buying leads, if you’re using third parties to make your calls on your behalf, you really need to understand now more than ever that complying with the TCPA is critical. It is absolutely critical right now.

Matthew Marx
So that’s a great background, Puja. What, I think people underestimate the extent of this. You laid it out in a way that I haven’t heard it laid out before.

This is bigger than your competitors. This is bigger than market changes. I know in some industries, there are like real estate, there are other things going on that are maybe taking up the airwaves, like this is a pretty big change in terms of monitoring impact, you know, that the way you put that really brings it home, I think.

Puja Amin
Yeah, Matt, I mean, like you have the monetary aspect of it, right? But you also like when I was in-house counsel, our brand matters, right? loanDepot mattered to me. It still matters to me, but the brand matters. You were a part of that company. So when you’re hit with a TCPA violation, even if you know that your company didn’t do anything wrong and you have a serial litigator that came after you, your brand’s on the line, right?

And these lawsuits, they make the public news, right? Anytime a big entity gets sued with one of these massive lawsuits, it’s public knowledge and it’s out there and folks, competitors are going to want to attack you for these TCPA violations. I mean, my goodness, look at the recent court wizard case, right?

It’s making news all across our country right now. And so aside from the monetary risk that you have, you also have brand risk. And so you want to protect your brand and you also obviously want to protect your assets as well.

How are current leads affected?

Matthew Marx
Yeah, it makes a ton of sense. Okay, so let’s get into some of the details here. We’re going to increase the advancement as we’re matriculating upgrades in college, right?

So, okay, so a couple questions. So one, does this rule or change just impact new leads is one part of the question or are my existing CRM databases impacted? And that’s one part of the question.

And then I’ll just follow up with a part two for you, Puja, does this just impact a central marketing group at a corporation or do they have exposure for, say, in a franchise system or a group that has others marketing their products and services? Like, is there exposure up and down the chain to that or is exposure just central or just to the person doing the marketing at the end of the day?

Puja Amin
Yeah, let’s tackle both of these questions because these are very interesting and high level questions, not that you just asked. But let’s start with the first piece, right? Are your existing leads going to be valuable or usable or compliant, if you will, come January?

Currently, right, in present day today, you can obtain prior express bidding consent, right, to use regulated technology via a clear disclosure that includes what my partner and I have dubbed the Trotman 9, right? And you can have that disclosure on a web form. You can have the consumer select it, you can have a number of marketing partners via hyperlink so long as the website is clean.

There’s no, you’re not trying to trick the consumer, right, as long as other elements of what courts are looking at to enable a valid disclosure on our website are there, right? You can have Trotman 9, you can resell that leads hundreds of times, both fresh leads, age leads. They can go through multiple networks and affiliates.

And as we know, that’s very, very common in the lead gen industry. The new FCC ruling that has all changed, right? Before the ruling, there weren’t requirements of whether, you know, you can have multiple, you can have 110, 15, 5000, 2000 marketing partners with.

That is no longer the case. Under the new rule, right, if you’re using regulated technology, sharing lead information with FCC calls, and I love this terminology that they use, they call it the daisy chain of partners is no longer permitted, right? Now the texters and callers must obtain the consumer’s prior expressive consent from a single seller at a time.

What does that mean, right? So now when you’re looking at whether you are obtaining consent for a seller, the seller is no longer the lead seller. It’s no longer your marketing partner.

The seller is the entity that is going to be providing the good or service to the consumer, right? Not the lead sellers. So for instance, you take, I love using the lending vertical because it came from loanDepot, right?

But you take loanDepot for instance, right? Now loanDepot can no longer, loanDepot has to be moved into disclosure. If loanDepot has leads and it’s CRM and it’s database that were generated through, for instance, Lending Tree, and they are trying, loanDepot is trying to call based off that lead, that is no longer valid, right?

So you imagine how many leads are being purchased or have been purchased that are sitting in people’s pipelines, right? In businesses pipelines. And now those leads are essentially no longer valid unless they have obtained consent for that specific seller.

And the consumer has clicked on or has accepted to receive calls from loanDepot. Just because loanDepot, for instance, is listed on a hyperlink or a list of partners with other mortgage companies, that is no longer valid if you’re using regulated technology.

Now, if a lot of folks are asking, so what do I do with all this data that I purchased? I have a bunch of leads sitting in my CRM and I can’t do much with it. Well, there are a few things you can actually do with that existing database.

You can use non-regulated technology, right? The new rules, in our opinion, has not impacted the use of a pure manual system. And we’ll get to that in a little bit, right?

Determining whether you’re using a pure manual system versus an ATPS can be extremely tricky in TCPA law. So you want to definitely take caution before you’re assuming whether you’re not using regulated technology. So if you’re not using regulated technology and you have confirmed that you’ve consulted with an attorney, you can then reach out to those existing leads that you have in your CRM.

Assuming they are not on the National DNC list or assuming you have received what I outlined earlier, prior express indication. Or if you have an EBR inquiry exception under the National DNC rules. Now, and I think Matt, you had actually pointed this one out in your last webinar, which I thought was genius and kind of obvious, right?

What more can you do with those leads? Can you start reaching out to them now while you have the prior express written consent as it’s defined today to then obtain prior express written consent come January? The answer is yes, right?

If you have the resources, you go and have a way for your current lead to go into and have them and direct them to a website where you have now what we’re going to call the Troutman 15 laid out on the website disclosure and that consumer now accepts the new requirements, then yes, you can use those leads now come January. 

And so, you know, but you really, really want to be careful with that existing database when you’re using regulated technology, because if you’re using regulated technology and have not obtained the new requirements, then those leads are dead. Those leads are no longer valid and there’s not much else you can do with them other than not use technology.

What is regulated technology?

Matthew Marx
So that brings this use of technology is always an interesting thing to me. And the definition of what’s regulated and what’s not, you brought it up like I was on a I was on a panel and we were asked, like, if you use your phone, is that a is that is that a is that a use of technology, right? Is that a use of automated technology?

If you reach out via email, is that governed by this process? Can you weigh in on like what we know? I know some of this is going to be maybe litigated out in the courts, but can you weigh in?

I’m like, I think those are a lot of questions I’m hearing of, like, what constitutes tech technology here and what doesn’t? And I know you should talk with your attorney. But from what we know, Puja, what what are what are your thoughts there?

Puja Amin
Yeah, so the calls to the DNC, the National DNC list are probably outside of the scope of the new FCC regulation. Right. So the regulation or the new regulation addresses the prior express written consent around just regulated technology.

The FCC did not address or attempt to revise the definition of what we call the prior invitation of the prior express invitation definition. I mean, the TCPs do not call rules, but, you know, the courts and other organizations like the FCC, right, they can start interpreting this new rule very narrowly. There’s I can’t predict what the courts are going to do or if plaintiff’s attorneys are going to try, which they likely will try to apply the new definition to the TCPs DNC rules.

But, you know, when you’re assuming when you’re looking at whether you are using regulated technology, you have to look at whether you’re using a human selection tool. Right. There’s a few platforms out there that I know of, SafeSelect, Initiate by Drips, for instance, that, you know, Troutman Amin knows them to be a pure manual system because of the things that the courts are looking at after the Facebook v. Duguid Supreme Court ruling. 

These reports are kind of all over the place on how they interpret what an ATVS is. But, you know, if you’re using any form of pre-recorded calls, any type of AI outreach or any type of automated technology under the state rules, then you are going to be falling within that purview of regulated technology.

The rules are extremely nuanced, especially at the federal level. And the definition of autodialer, like when I first started my career in TCPA World, that was hotly litigated. Right.

What’s an autodialer, what it’s not. Those cases, the ATVS cases have, you know, they did decrease over the last few years, especially after the Facebook ruling. But I predict that now come January, a lot of folks out there are going to assume without consulting attorneys that they are not using regulated technology and continue to use the database that are currently in their CRM.

Now, when folks start doing that, plaintiff’s attorneys are extremely smart. They’re keeping track of these new rules. In fact, they are the folks that are actually behind the FCC implementing these new rules.

And they will now start questioning whether you are using ATVS. So I predict that the ATVS cases will go up. Obviously, the consent cases and whether you have valid cases are only going to go up.

So now it’s just going to be more low hanging fruit. And so you have to be really, really careful before you just assume that you’re not using regulated technology.

Is email included in the TCPA?

Matthew Marx
That makes a ton of sense. So just double clicking on the, it’s called the Telephone Consumer Protection Act. So the question, like, are we just talking about telephones? Are we talking about other means of contacting like email in other forms?

Puja Amin
So luckily, email is not governed by the TCPA. Text messages and calls when you’re using the regulated technology is going to be governed by the TCPA. So folks in this industry are extremely smart.

I highly recommend that folks start using email to either capture consent or do outreach or remarketing. Because currently, you know, we have the CAN-SAM, the federal email regulation that’s out there that doesn’t carry, luckily, a private right of action. But there are other state laws that do govern email marketing.

But the TCPA, fortunately, does not govern marketing, email marketing.

Who is liable for TCPA violations?

Matthew Marx
Thanks. Thanks, Puja. I get that question a lot. I know it’s basic for you, but really important to clarify for those listening. The other thing that I’m asked a lot out in the field I’d love to get your impression on is the risk of exposure kind of top to bottom in an organization. So we, for instance, service a lot of organizations who are distributed, who maybe have a central group, either a franchisor or corporate marketing group.

And then we have lots of individuals, either loan officers or real estate agents or franchisees who are out and doing their own demand and lead generation through maybe Facebook and Google and the UIs. They have some nice UIs where you can run your own marketing programs or have, you know, someone run them for you. How does the exposure break down?

Is it just the individual agent or loan officer that’s liable? Is it just the corporate group? Or like, how does that or are marketers and intermediaries liable?

Like, how does the liability break down on this thing kind of top to bottom? We’re talking about a complex use case like that. If a loan officer goes and runs their own marketing, can the parent mortgage lender be liable for that?

Puja Amin
Absolutely. And they’re probably going to be more liable, right? So the parent company is going to have the deeper pockets.

So they’re going to be the first target for the plaintiff attorneys because the plaintiff attorneys are often just looking for a huge number of settlements. And they know that the folks that can provide those settlement funds are going to be the parent companies, right? And because of vicarious liability principles and whatnot, it directly impacts the agents, small companies, subsidiaries, and the larger entities.

And if you are operating, you know, you have an agent that’s operating its own comparison site or buying its own leads, you are going to be responsible for the acts of those agents. And we see these lawsuits all the time, right? The plaintiff’s attorneys will often even talk to the parent companies and try to pull in the subsidiaries or the third party marketers and the bigger brands, right?

They’re going to want to hold the folks that are downstream parties responsible for their essentially their illegal acts. And so you better, you know, better really wrap your head around it that everyone’s at risk, right? Including, you know, personal liability risk, right?

If you are a person that’s in charge of marketing, whether that’s you’re in charge of a small group of agents, if you’re in charge of an enterprise marketing and you are blessing some of the illegal activities, you’re going to get looped into these lawsuits as well because there’s personal liability under the TCPA as well. 

So, you know, just understand that this new ruling and even before this new ruling, the TCPA impacts all companies that purchase leads, all employees of these companies that purchase leads from comparison sites or, you know, even if you’re running your own lead generation business, you are going to be directly impacted. It’s going to impact any company that relies on TCPA consent for any kind of regulated technology.

It’s going to impact anyone who uses third-party call centers to call on their behalf that call centers are at risk. You know, even platforms that you are using are now at risk under the TCPA. I’m seeing more and more that platforms are being pulled into these lawsuits as well.

So, you know, once this rule takes effect, you really have to understand that businesses, lead generators, and what the websites you’re using, whether it’s your agent or if it’s, you know, the parent company, you’re going to be held liable for this. 

And I suspect that the parent companies are going to want to loop in the third party, the vendors and the agents more so because they don’t want to take responsibility for this.

How to train your employees

Matthew Marx
Yeah, well, it sounds like what you’re, I mean, what you’re saying is pretty like, pretty difficult for the industry, right? If we’re thinking about, you know, a real estate brokerage or a, you know, lots of industries pattern match this, but I have hundreds or thousands or hundreds of thousands of individual contractors, maybe who aren’t even employees who are running around buying leads that potentially are non-compliant. 

Or even just going into Meta or Google on their own and running marketing to generate leads. And they don’t have me, the official provider of the service named, then I, then they not only can have exposure and liability, but everyone up the chain couldn’t have exposure and liability. And I know there’ve been some suits that have related to that.

I mean, that’s hard to stomach. If you’re a, like, what, what are you seeing folks doing about this in the space? Are, are they locking it down yet?

I mean, if I’m maybe a brokerage, I’m considering, Hey, you can’t go generate your own or buy your own leads. I’m going to bless the sources that come through. Like what, what are folks, what are folks doing about this Puja that you’re seeing out there?

Puja Amin
I mean, the, you really have to educate the folks that are underneath you, right? You have to put in procedures and protocols and policies that your agents will only use X technology. Your agents will only use human selection tools when they are calling based off their existing database that was pre January, 2025, right?

You have to also educate your employees at the end of the day, and the folks that are representing your brand of these new rules. And so, you know, my recommendation is providing folks with tools that they can utilize, right? Whether that’s technology compliant technology, whether that’s providing them a link to the Troutman Amin 15 on TPCA World.

So they understand what kind of consent that they need before they do any kind of outreach. And then more importantly, kind of using a little bit of the scare tactics, right? Letting folks know that they too can be responsible for the outreach they’re doing.

A lot of these agents and brokers, you know, they don’t understand a lot and they’re not lawyers. So, you know, they arguably, you know, aren’t expected to, but as an organization who’s going to be at risk for their acts, you are going to have to educate them and really point them in the right direction. Otherwise, you know, that, mission creep and that control of your agents, like the rogue agents are going to cause you the most problems.

And, you know, and the brokerage issue is it’s a huge issue, right? That’s one thing that didn’t take into account reach, which is the trade organization that my partner is spearheading that is setting standards for the lead generation industry and lead buyer industry to really set out standards that the FCC will respect, understand, and take into account. So if you are in that organization, you are going to be required to comply with these new rules.

And in addition to these new rules, additional rules, right, that regulators are looking at, that the FCC, the TSR are looking at as well. And so, you know, when you’re keeping in mind these rules, sorry, so the broker issue reach had submitted comments to the FCC, specifically trying to resolve the broker issue, right? The FCC didn’t take into account that if you are a broker, whose name are you going to list on the form, right?

They didn’t take into account that a broker who may get a lead, right? You have All State and Progressive, for instance, right? If Progressive has a cheaper rate, but you only have the lead or the seller lead as All State, are you reasonably going to provide the consumer a product that is probably worse off for them?

And I don’t think the FCC really thought that through. Now, I know a lot of my clients who are trying to resolve this issue, there’s different ways that you can craft the disclosure. For instance, you know, if you the product or service that you’re providing to the consumer is no longer the insurance product, it is now the help or the assistance of providing, looking for insurance, then you can kind of craft that language. So then you are falling into the purview of the new rules.

Matthew Marx
That is really interesting. And Eric and I touched on that briefly in our last webinar, but that’s a very interesting nuance, whether I’m representing the product of the insurance, they’re the service provider that needs to be named, or if I’m the consultation or advisor, and I’m offering an advice service, and therefore I am the service provider at the end of the day.

That is a really interesting nuance out there that you bring up, Puja. It’s going to be kind of fascinating to see how that plays out and whether these shift, you know, even the messaging shifts to a consultation versus the offering of a product in order to support that viewpoint.

Puja Amin
Yeah, you want to keep in mind, right, the definition of what the seller is going to be is going to be the company or the entity that is providing, the single entity that is providing the bill of service, right? 

So if you’re a broker company, and the service you are providing is to help consumers find insurance, then you should, you know, display your website as such, display your disclosures as such, and then probably under the new rules, if you craft your disclaimer accordingly, then you will be okay. But it’s tricky, right?

Because a lot of these brokers are getting leads from other companies that may not understand this.

Matthew Marx
Yeah, yeah, no doubt. We have a few questions popping up. Why don’t we, this is great.

Why don’t we, why don’t we go into these couple, these are a little more complex. Justin, do you want to run us through that? Or would you like me to?

Justin Ulrich
Yeah, we’ve had a few questions come in. Again, if you have any questions at all, feel free to type them into the comment section. We’ll get to as many as we can. One of the first ones that came in was around B2B. So how does this apply to B2B calls?

And I guess we’re talking TCPA, who is the actual consumer?

How does this apply for B2B calls?

Puja Amin
Right. So TCPA applies to B2B calls when you’re using regulated technology. I get, I’ve been asked this question multiple times throughout my career.

And a lot of folks, I think they get confused because you have, as I said, you have two buckets of the TCPA regulations, right? The regulated technology bucket, and then the DNC bucket. And under the DNC rules, there are exceptions to B2B calls if you are calling a business landline, right?

And so you are exempt when you’re calling a business landline when you’re making B2B calls. But if you’re using regulated technology, the TCPAs can apply B2B as well.

Matthew Marx
It’s an interesting nuance there that you mentioned that I’ve seen in real life, actually, with a family member who’s a part of one of these and has gotten some letters related to it. This is the number one that was listed on a business as the business contact or business primary contact. 

It’s a very interesting, that can be a way around this, but it’s hard to, obviously hard to bet on that if you’re skipping the DNC. So really, really tricky.

Puja Amin
And then keep in mind, along with the national DNC list, you have State DNC rules as well, right? So you have the federal rules, and then you also have the state rules that you have to keep in mind even when you’re not using regulated technology.

Call centers

Matthew Marx
Yeah. Yeah. We have an interesting scenario, Justin, on one of the first questions that was asked that I thought maybe we could just jump into quickly.

And Puja, just to give you a brief, I’ll try and summarize the question. This is about a primary, a live transfer situation in a call center where the primary outreach has a written consent, a proper written consent. And then there’s a live transfer from a verbal consent perspective as a secondary transfer.

And I think I summarized that properly. Let me just make sure before we go into it. Regarding live transfer products where a consumer, after the consent is collected, pursuant to FCC TCPA 1.1, is connected to a live representative and ask some questions in real time. And then based on the answers transferred onto a different provider company, also in real time, is it compliant to collect a recorded verbal consent for that live transfer under the new FCC regs? That’s the question. 

And if you’d like to not weigh in on that, it’s totally okay. But I thought it was a pretty interesting nuance situation that I’d throw out for you.

Puja Amin
I am happy to weigh in on that question because that’s another question that we get asked quite regularly. Starting off, you cannot obtain prior express written consent verbally. And I know there’s a lot of lawyers that get bad information out there and that’s been ambiguous to a lot of folks.

But you cannot obtain prior express written consent verbally. It kind of makes sense. However, in response to that question in particular, if you have prior express written consent under the new rules and you have consent for that one seller and say you are calling for loanDepot, you have a consent for loanDepot and you want to transfer that call to now loanDepot, you can do so.

You can only transfer it to loanDepot. You do not need to get additional consent, assuming you have the full PEWC before you made that call. However, I caution because if that call does not get transferred to loanDepot, but that lead falls into loanDepot’s bucket, loanDepot can then no longer call that consumer using, sorry, if the call does not end right there, then you have to be careful that you’re not using regular technology against that consumer consent.

But you can transfer if you have prior express written consent directly to loanDepot.

Matthew Marx
What about transferring to another entity that wasn’t on the original consent?

Puja Amin
That’s a no-go. So you cannot, unless the consumer clicked, say the consumer clicks, you have a list of partners in the consumer checkbox, loanDepot and Wells Fargo and Build Mortgage, for instance, then yes, you can transfer that consumer’s information, that consumer’s call to any of those three entities.

Matthew Marx
Wow. That is such a big change for lots of folks in the live transfer business. That was a great, great, great question out there coming from one of the listeners. Thank you for that. Justin, do you have some others teed up?

Justin Ulrich
Yeah. Besides email, what other mechanisms can we use to collect consent? As long as it’s text consent, right? So can they get it over text or are there other means?

Puja Amin
So as I previously mentioned, you can currently use, if you have prior express written consent, you can currently use that consent to get the new consent. But if you’re using regular technology to send out text messages, you’re not going to be able to capture consent using regulated technology, unless you already have that to begin with. 

I do know of one solution that has recently came out in the industry where they are able to help you track consent through a text message and send it to like a web form and kind of collect it on a live call.

And so I encourage folks to kind of look into solutions that can help direct the consumer into a web form. Or if you’re on the call with a consumer and you load up the website and the consumer goes on the website and accepts your consent right while you’re on that call with them, then there you go. You capture the full PEWC.

So there are different methodologies that you can use to recapture that consent, including email, of course.

How will portals for home services be affected?

Justin Ulrich
Perfect. There’s a question from Tony Nguyen. I’m just going to summarize it real quick. But if you’re working in the home services space and you rely on portals to get leads to do business, how are those businesses affected?

Puja Amin
Those are huge, right? So when you’re using those portals, you’re going to have to be able to operationalize and confirm that you have obtained that consent before you make that call, right? One part of the ruling that we surprisingly didn’t discuss, Matt, was the third piece, which is you have the first piece, which is the one-to-one consent ruling, the second piece, which is the logically and topically, and then the third piece, which is new and wasn’t there before, is that callers now have to attain the consent before they make the call.

Currently in the industry, folks will often get the consent records afterwards or if they get sued, the consent records will be asked for after the fact. Now, before a seller makes that call, that consent record has to be in their hands. So if you were using a platform that is providing you leads, that’s fine, assuming that you have the proper consent record and the proper consent before you utilize that lead and make calls based off that lead that was in that platform.

Matthew Marx
So you have to be able to prove, and this is something we talk about, we deal with all the time, you have to be able to prove and get, if you’re buying leads from someone, you need to not just get the lead, you need to get the package of documentation of what was the marketing, so that we can prove logically and topically related, what was the consent, was I named on the consent, that entire kind of chain.

I need to get that with the lead if I’m buying leads, otherwise I’m exposed to calling in case that consent didn’t exist. Puja, that’s what I’m hearing you say.

Puja Amin
That is correct. The FCC has now imposed new record keeping requirements on callers. You can no longer rely on lead suppliers to maintain that consent.

The callers now have to take the possession of the consent worker, the active prospect before they make that outbound call. Today, we can warm transfer, we don’t take consent records with it, even with data leads, often you’ll get like the API push and then information that would lead on an Excel sheet or whatnot, but that’s no longer the case. Now, before, if I’m loanDepot, for instance, I have to have that consent record in my hand, the active prospect form, that form, before I make the call.

Matthew Marx
That’s a really important piece for folks to know and think about. They might violate it without even knowing because their lead provider is claiming that it was generated compliantly and it wasn’t, and then that’s not necessarily an excuse that will be held up in court for you, right?

Puja Amin
It’s huge. It’s another, as I mentioned, another low-hanging fruit for the plaintiff’s attorneys. It’s actually quite shocking, right?

Currently, I deal with ATBS cases, BNC cases, and consent cases, but now because the caller doesn’t have a consent worker before they made the call, now they’re subject to that $500 per call or text. Yeah, folks really have to start thinking about how they’re going to operationalize that.

Where to find definitions around regulated technology

Justin Ulrich
Where can someone find definitions around regulated technology?

Puja Amin
That’s tough. Regulated technology as a whole, it’s going to include pre-court calls, RVM, some quick-to-dials, et cetera. One thing we do here at Troutman Amin is we assist our clients to review the systems of records and the technology they’re using and whether they’re actually using the selection tools to determine whether you’re using regulated technology or not.

I highly encourage someone to use experience counsel who can actually vet your system, look at the coding, look at all the federal rules and then also the state-level rules to determine whether you’re using regulated technology. But just assume if you’re using anything that’s automated, pre-courts, AI, of course, that you’re going to within the regulated technology bucket.

Justin Ulrich
Perfect. Is there a specific time where consent is valid for?

Puja Amin
I love this question. Consent doesn’t expire unless a consumer provides their revocation or their DNC. A consent record and a consent can last you upwards of 10 years until a consumer says, please stop calling me.

However, you want to be cautious of that because if you’re calling age leads, for instance, come January 27th, a lead that was generated today based off the Troutman 9 and not the Troutman Amin 15, that is going to be an illegal lead, even if the consumer didn’t provide their revocation, if you will. One thing I always caution brands is do you really want to be calling leads after a certain time period? Probably not.

Often, and another part that we haven’t talked about, but you have risk of calling wrong numbers. Under the TCPA, if you’re calling a wrong number and that number has changed hands, then you are going to be liable for calling that wrong number, even though you thought you had consent for the appropriate, the then holder or the subscriber of that phone number. I often encourage folks to scrub against the reassigned number database if you are calling leads after the 90-day period.

Required documentation

Justin Ulrich
Perfect. What documentations needed to maintain or prove that you have consent from a lead?

Puja Amin
The FCC and the courts have actually not dictated what specific consent record you need. The FCC, with the new ruling, has mentioned consent records, but as the industry usually knows, there’s two solutions out there. There’s a few others.

A lot of folks are doing homegrown consent recording keeping, but essentially, you want to be able to show that the consumer went on the website as it existed when the consumer went on the website, entered their name, their phone number, and then accepted the TCPA’s disclosure. Obviously, you and I, in active prospects, have web sessions, recordings, and replays that they can provide folks, but you want something similar to that where you can show the consumer’s journey to help provide your defense. Keep in mind that the prior discretionary consent, it is your burden as the caller to show that you had consent.

You want it as buttoned up as possible. If you have a really, really good consent out there and a really good website out there, you’re going to want to show the courts and plaintiff’s attorneys that consent record. Oftentimes, when you receive a demand or TCPA demand or litigation, you can shoo away the plaintiff’s side if you can show that defense or that record of consent.

$450 million in violations

Justin Ulrich
Perfect. That gets through most of the questions. I just wanted to real quick ask you, Puja, I know that there’s been a significant uptick in different cases that we’ve been seeing lately.

Are there any that are kind of recent or any that stand out as like a big aha or a watch out or something that it really demonstrates the need to be buttoned up?

Puja Amin
Yeah, so the big one is the newest, the Quote Wizard case that came out where Quote Wizard was hit with $450 million, folks. And the reason is, well, we’ll shock most folks if you haven’t already read it on TCPA World, but Quote Wizard, what the court found was Quote Wizard had a TCPA disclosure. It had its marketing partners listed within the disclosure.

What it didn’t have was its own name in the disclosure. So even though Quote Wizard was calling on behalf of the seller or the entity, it did not name its own name in the consent record. Now, that is what that court held.

And because of that nuanced aspect that Quote Wizard didn’t have, according to the court, they are now facing $450 million in violations. And that just goes to show that courts are different all across the country. The judges obviously are going to look at it in a subjective view.

So courts can look at things like a consent display or whether a website is logically and topically related in very different ways than perhaps your train looks at it, perhaps the way you see it. And until courts are evaluating these new rules, you want to be very conservative and follow the new FCC rules, right? 

There will be a time that will come, maybe six, seven months, where we have more case law developed, where we kind of understand better what the courts are looking at, what plaintiffs’ attorneys are attacking. Until then, folks should be really conservative and buttoned up when it comes to each of these three new rules.

Are there state-specific TCPA rules?

Justin Ulrich
Wow. Real quick, before we wrap up, are these all federal laws and rules to follow, or are there state-specific rules around TCPA that folks need to be aware of?

Puja Amin
Yeah, so every state except one has its own mini-TCPA rule. And those mini-TCPA rules can either mimic the federal statute, they can be more conservative, or they can be a little bit more loose when it comes to their regulations. But the majority of the states will have its own definition of what a regulated technology is.

It will have their own state-specific DNC list, call time restrictions, etc. Some of them have text message rules, rules that apply only to text messages. So you want to be extremely careful with the state regulations as well.

Often, I see this more than often now, especially this year, now plaintiffs’ attorneys are bringing federal claims along with state claims, because why not, it’s easy to just allege in the complaint. If you’re violating the federal statute, you’re probably in some way going to be violating the state statute. And then the states also have additional fines.

Some of them will have heavier fines, maybe $500 bucks. Some will have $1500 bucks per call or text. So you really want to keep in mind.

In addition to state rules, one thing I also want to add is you have the TCPA, you have the state rules, but you also have regulators. You have the agency offices, you have the FTC, right? You have the CFPB that is governing anti-steering rules.

And so along with the TCPA fits alongside these other government bodies that the courts may look at as well, right? And because of that, one thing that I didn’t get to mention was that I had mentioned REACH, but REACH has come out with its standards and it’s in the process of finalizing its standards, but REACH has come out and we’re not going to move on this. Essentially, when you are listing out your partners under the new rules and the new disclosures, you cannot rank the sellers or the names of the entities based upon the highest bidder.

You cannot display a single seller form based on the highest bidder, right? And REACH is not going to give an inch on this. I’ve talked to my partner many times about this and we just can’t, right?

Regulators don’t like it. The anti-steering rules prohibit it according to the CFPB, the anti-fake review regulations by the FTC prohibit it, right? And the trend of the regulators is that they want transparency on these forms, right?

The reason we’re here today is because the regulators and FCC, they got fed up with the lead gen industry taking advantage of consumers, right? Before this moment came out, REACH had gone in with FCC and try to force them to have a middle ground. When they first started making these rules, they wanted to shut down the lead industry as a whole.

And we are lucky and fortunate that we came to a middle ground, but folks need to keep in mind that what the regulators and FCC are looking at is transparency, right? You want to be able to give the consumer the best option for them. You don’t want to be tricking them or forcing them to just go to the higher bidder because you are going to make some money out of that highest bidder.

So, you know, just keep that in mind. You have the TCPA, you have other government bodies that are kind of mimicking these new rules. 

CMS, for instance, right? The Medicare industry has come out with its own rules, essentially, which comes out in October, where they are essentially requiring these new one-to-one consent rules. So, you know, folks are paying attention. It doesn’t matter what vertical you are in, all these TCPA regulations are going to apply to you.

Matthew Marx
And it sounds like, Puja, that the… I’ve heard this before. I heard this from Eric, but you just, like, touched on it. For everyone out there, it sounds like this is not necessarily the end of these changes, right? And so there may be more changes that are coming along. There may be…

This might evolve over time in different ways. And so this isn’t necessarily… this is a big milestone, a big change, but it’s not necessarily the end of these changes as well, especially if we’re not the industry, lead generation industry, not good actors in trying to comply and put these into place beyond the reputation, as you mentioned, and the financial aspects of this.

There’s also a… it could get as bad as this seems, it could get worse. That’s what I’m hearing you say.

Puja Amin
Yeah, it’s not going to get better. If anything, it’ll probably get worse if the lead generation industry doesn’t self-regulate. And that is the primary reason we have developed OOCH, right, to help folks comply with these new rules.

And, you know, I know we talked about a lot of, like, scary things today on the webinar, but all compliance is doable. I do this for large institutions day in and day out. I do it for loanDepot, right?

It is very much doable. And folks in this industry are extremely intelligent. They just need to wrap their heads around the new nuance rules and kind of really start operationalizing it now before January 2025. But it is doable. You just have to tread carefully and not take advantage of the new rules, because taking advantage of the TCPA is what kind of got us here to begin with.

Matthew Marx
That’s really helpful. It can feel hopeless sometimes. I know.

How do I wrangle, you know, again, if I’m a franchise system, how do I wrangle thousands or tens or hundreds of thousands of folks and lock them into compliant flows? It sounds hopeless, but there is hope there. I think the fear, personally, is a little helpful because it’s real and because it gets people’s attention and gets them motivated to change something pretty substantial.

But I think it’s a really kind of positive and hopeful note to end on. Puja and Les, Justin, you have something else there, or Puja, you guys have something else to go into.

TCPA resources

Justin Ulrich
I would just say if we have any resources, if you guys want to tee up any resources for our listeners to check out, we’ll put links in the comments, but maybe just a quick tee up for those would be awesome.

Puja Amin
Yeah. I mean, tcpaworld.com, we, you know, here at Troutman Amin, we live, breathe, drink the TCPA every day. We love giving as much information as we can out there because we’re on your side, right? I’m on my client side. I’m on your side. You want to help assist, make the law a little bit more simpler. 

Sign up. You know, you don’t have to subscribe or anything. Just sign up. It’s a cool little tool. We blog every single day. 

And then for folks who are really interested in being compliant, I encourage you to look at the standards for reach and join reach and join other good partners and compliant partners that are going to be out there from January 2025. And then keep in mind there are solutions out there, right?

There’s human technology solutions, there’s consent record solutions, there’s Evocalize, which we didn’t even touch on, but there’s so many technologies out there that can help you be compliant. So I urge you to get out there and see what’s the right solution for your brand.

Matthew Marx
That’s awesome. And then just from an Evocalize perspective, we’ll put the links in so you don’t have to write this down frantically, but we built an Open AI GPT that will, remind you that it’s not your attorney every time it talks to you, but it’s a nice informational question and answer format.

It’s been trained by all the regs and everything out there. And so it’s hundreds and hundreds of hours of great stuff like from Eric and Puja and other content available on the web. So you can ask questions if you’re trying to get some more background.

And it’s pretty darn good. It’s even generated some forms that it thinks are compliant and can draw up for you. But obviously, check all of that with your attorney, but it’s there as a resource. We’ll put it in the chat.

Justin Ulrich
Perfect. Well, with that, we’ll go ahead and wrap things up. Thank you both, Matt, Puja, for joining us. Everyone who’s listening, thank you for joining us as well. We’ll have all the resources linked in the comments, as Matt mentioned. We’ll also be sending this link to this webinar out in an email as well as the link you’re currently on. We’ll continue to work in perpetuity. Thanks again for joining us. You guys have an awesome day.

Matthew Marx
Thank you Puja.

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