{"id":8696,"date":"2024-06-27T08:47:41","date_gmt":"2024-06-27T13:47:41","guid":{"rendered":"https:\/\/activeprospect.com\/blog\/\/"},"modified":"2026-03-20T11:15:52","modified_gmt":"2026-03-20T16:15:52","slug":"anticipating-tcpa-updates","status":"publish","type":"post","link":"https:\/\/activeprospect.com\/blog\/anticipating-tcpa-updates\/","title":{"rendered":"Tips and strategies to proactively anticipate TCPA updates"},"content":{"rendered":"\n
\"How<\/figure>\n\n\n\n

Major changes have rocked the lead generation and performance marketing industry with the recent reshaping of the Federal Communications Commission (FCC) TCPA with the new one-to-one consent rules.<\/p>\n\n\n\n

Many companies find themselves seeking answers on how to maintain their businesses while staying compliant <\/strong>with this new scenario. ActiveProspect recently hosted a much-needed webinar \u201cDon\u2019t play the waiting game: Strategies for anticipating TCPA updates\u201d<\/a> discussing the implications of these changes and providing insight into these emerging challenges.<\/p>\n\n\n\n

Our Director of Privacy, Security, and Compliance, Benjamin Farrar, and our Director of Professional Services, Michael Peronto, sat down with Alysa Hutnik, Partner, Privacy, Information Security, Advertising\/Marketing Law at Kelley Drye & Warren LLP, and Jenny Wainwright, Senior Associate at Kelley Drye & Warren LLP.<\/p>\n\n\n\n

Our expert panelists took center stage to detail and explain these significant developments, emphasizing the importance of anticipating The Telephone Consumer Protection Act (TCPA) updates<\/strong> and the requirements of the newly formed FCC rule on one-to-one consent.<\/p>\n\n\n\n

Key trends about the FCC one-to-one consent rule<\/h2>\n\n\n\n

Urgency to keep track of all the changes<\/h3>\n\n\n\n

As Jenny points out, \u201cever since the FCC rolled out the one-to-one consent rule, it’s just been a ton of questions about implementation.\u201d<\/p>\n\n\n\n

According to her, it’s not only about adhering to FCC guidelines. The industry as a whole recognizes the immediate need to implement one-to-one consent measures, from telephone carriers to texting platforms.<\/p>\n\n\n\n

Despite the technical timeline where the FCC’s rule doesn’t take effect until January 2025<\/a>, the urgency to act is palpable <\/strong>due to the time required to experiment and implement these significant changes to standard business practices.<\/p>\n\n\n\n

Moreover, the one-to-one consent rule is just one part of a broader wave of regulatory updates that began with the December order. This order marked the beginning of significant changes, quickly followed by the AI declaratory ruling<\/a> and adjustments to the revocation of consent rules<\/a>, each with its own deadline.<\/p>\n\n\n\n

Below is a timeline with the main dates<\/a> you should mark on your calendar.<\/p>\n\n\n\n

\"TCPA<\/figure>\n\n\n\n

With all these overlapping deadlines, it’s a complex landscape to navigate, highlighting the importance of staying on top of these evolving regulations<\/strong>.<\/p>\n\n\n\n

Pressure to implement the changes sooner than required<\/h3>\n\n\n\n

As Alysa explains, from a business perspective, you might want more time to test the user flow for one-to-one consent, but there’s significant pressure from messaging and communication platforms who are being pressured by text and calls carriers – who in turn are pressured by the FCC – to tighten their controls against phishing preventions<\/a>, spam, robocalls<\/a>, and other unwanted communications that are generating unusual traffic and numerous complaints.<\/p>\n\n\n\n

Consequently, according to Alysa\u2019s own experience, the one-to-one consent rule is being indirectly enforced by inquiry, reviews, and audits now <\/strong>. Auditors and platforms are proactively contacting their clients, scrutinizing elements like privacy policies, TCPA consent language<\/a>, or URLs. They’re pointing out terms like \u201cand affiliates\u201d or \u201cand marketing partners\u201d linked in these documents, and although you might think compliance isn’t required until next year, they’re insisting on immediate action.<\/p>\n\n\n

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Let\u2019s analyze a real case: Bradley vs. Dentalplans.com<\/h2>\n\n\n\n

In the spirit of putting things into action, Michael discussed an actual case that was recently taken to court: Bradley vs. Dentalplans.com<\/a>.<\/p>\n\n\n\n

Case background information<\/h3>\n\n\n\n

In November 2018, the plaintiff contacted Dentalplans.com to enroll in a dental savings plan<\/strong>. During the conversation, a company representative verified the plaintiff’s phone number and sought her consent for Dentalplans.com to reach out using an automatic dialing system (ATDS)<\/a> or pre-recorded messages, among other disclosures.<\/p>\n\n\n\n

The plaintiff inquired about the purpose of these automated calls, and the representative explained that they were intended to keep her updated on plan details and assured her that only Dentalplans.com would make such calls. The plaintiff consented to this arrangement and subsequently signed up for a Cigna dental discount plan via Dentalplans.com.<\/p>\n\n\n\n

Almost a year later<\/strong>, Dentalplans.com contacted her to discuss details of her plan. During this call, the plaintiff indicated she did not wish to automatically renew her plan<\/strong> and was told she would be notified upon its expiration. However, she later<\/strong> received around 10 pre-recorded calls<\/strong> from Dentalplans.com, termed as “win-back” calls.<\/p>\n\n\n\n

This led the plaintiff to file a lawsuit <\/strong>against Dentalplans.com and Cigna Health and Life Insurance Company, alleging violations of the TCPA.<\/p>\n\n\n\n

The court\u2019s opinion<\/h3>\n\n\n\n

The court determined that the calls made after the expiration of the plan, referred to as the “win-back” calls, were indeed telemarketing calls<\/strong>. This raised a crucial question: whether the TCPA disclosures provided during the initial call sufficiently met the standards for prior express written consent<\/a>.<\/p>\n\n\n\n

Moving to another aspect of the court’s decision, it was found that merely capturing or recording audio is insufficient to secure prior express written consent for the use of ATDS or pre-recorded messages under the TCPA. The court explained that the TCPA mandates specific disclosures to fulfill the requirement of prior express written consent, and these must align with the consumer disclosure provisions of the E-Sign Act<\/a>, which stipulate that such disclosures be provided in writing.<\/p>\n\n\n\n

However, the court noted in a footnote that the consumer’s signature and consent, as well as the content of the agreement, could still be obtained via voice recording. The only element that could not be captured through voice recording, according to this ruling, were the TCPA’s required disclosures.<\/p>\n\n\n\n

Unpacking the case<\/h3>\n\n\n\n

As Alysa explains, this decision is quite recent and arrives at a time when many of us are considering how to adapt to the one-to-one consent requirement. Some methods include obtaining consent through a web flow, during a phone call, or on an inbound call. For instance, if you’re connecting a caller to an insurance partner during a call, that would be the moment to secure one-to-one consent for the partner you’re introducing.<\/p>\n\n\n\n

This ruling challenges that approach. But why did this lawsuit arise in the first place? Here are some practical considerations<\/strong> from Alysa:<\/p>\n\n\n\n