As we approach the 2024 halfway mark, businesses that rely on texting and calling to promote their products and services face an onslaught of new and significant legal and regulatory developments. To help with tracking these developments all in one place, below we summarize key telemarketing law developments and corresponding timelines to keep in mind:

1:1 Consent – At the end of 2023, the FCC adopted an amendment to the definition of “prior express written consent” under its TCPA rules to require that a consumer give specific consent to be contacted by a particular seller for marketing purposes, and that such consent must be “logically and topically related” to the context in which it was obtained. This rule will officially go into effect on January 27, 2025, but we have seen a trend among service providers in the industry (particularly calling and texting platforms) requiring that their customers implement 1:1 consent well ahead of that deadline (and make corresponding changes to their privacy policy about sharing consent data with third parties). It would be prudent for affected businesses to take this time to carefully review their opt-in processes and privacy policies to assess what changes are necessary from both a commercial and legal compliance perspective.

AI and the TCPA – On February 8, 2024, the FCC voted unanimously in favor of a Declaratory Ruling that classifies AI-generated voices on robocalls as “an artificial or pre-recorded voice” under the TCPA. This means that calls using AI technology to generate a simulated or pre-recorded human voice must satisfy the TCPA’s consent requirements (including prior express written consent for marketing calls using AI). While the FCC focused the ruling on the common use and accessibility of AI-generated voices by bad actors to perpetrate fraud and spread misinformation, the development underscores the heightened regulatory scrutiny on a business’s use of AI to mimic human behavior for marketing purposes. The FTC also outlined in a recent blog post some of the potential consumer protection and privacy concerns that can arise from the use of AI chatbots to interact with consumers.

Expanded Opt-Out Rules – On February 15, 2024, the FCC adopted a Report and Order and Further Notice of Proposed Rulemaking to amend its TCPA rules and clarify the ways in which consumers can revoke consent to receive calls and texts. Among the changes were the adoption of various “per se” reasonable methods for revoking consent, including by texting the words “stop,” “quit,” “end,” “revoke,” “opt out,” “cancel,” or “unsubscribe.” The FCC also made clear that businesses cannot prescribe a particular method for revoking consent, and must honor reasonable opt-out requests within 10 business days. Importantly, while businesses are permitted to send a one-time text to clarify the scope of a consumer’s opt-out request if that consumer has previously consented to receive multiple types of messages, if the consumer does not respond to that message, they are presumed to revoke consent for all further non-emergency communications. The effective date for the amended revocation of consent rule is still uncertain, as it is undergoing a review by the Office of Management and Budget. Once that review is complete, the FCC will issue a notice, and the rule will be effective six months thereafter. Businesses can prepare for this change by evaluating and testing their technology and processes to confirm they can honor opt-outs in accordance with the new requirements.

Telemarketing Sales Rule Changes – Looking beyond regulatory changes at the FCC, the FTC announced in March a significant update to the Telemarketing Sales Rule, most notably by expanding parts of the rule to business-to-business calls, and expanding the scope and timeline of recordkeeping obligations for telemarketers. These amendments generally became effective on May 16, 2024, except for the “call detail” records subsection, for which the FTC had previously announced a 180-day grace period to give affected businesses time implement systems, software, or procedures necessary to comply. As such, businesses will have until October 15, 2024 to adhere to that particular provision of the rule.

New and Updated State Telemarketing Laws. A number of recently-enacted state laws related to telemarketing have taken effect (or will take effect) in 2024, including:

Maryland – The “Stop the Spam Calls Act of 2023” became effective on January 1, 2024. Key provisions of the new law include a requirement for “prior express written consent” for telephone solicitations that involve “an automated system for the selection or dialing of telephone numbers,” as well as call time and frequency restrictions similar to those adopted in other states, and a private right of action for alleged violations. To date, we are not aware of any private litigant bringing forward an action in court under the new law.

Maine – Earlier this year, Maine adopted a first-of-its-kind amendment to its telephone solicitation law that requires solicitors to scrub against the FCC’s reassigned number database prior to initiating a call. While limited in scope due to underlying exemptions in the statute, the requirement will become effective on July 16, 2024.

Georgia – Several changes to an existing telemarketing law in Georgia were recently enacted, including: (1) eliminating the requirement for a “knowing” violation of the law to pursue enforcement; (2) extending liability for calls made “on behalf of any person or entity” in violation of the law; (3) allowing private plaintiffs to pursue claims for violations as part of a class action with no limitation on damages; and (4) creating a safe harbor defense for solicitations made to a consumer “whose telephone number was provided in error by another subscriber” if the caller “did not know, or have reason to know, that the telephone number was provided in error.” These amendments will become effective on July 1, 2024.

Mississippi – By a series of amendments to its existing telephone solicitation law, Mississippi severely restricted the ability of businesses to contact consumers by phone about Medicare Advantage plans (unless a consumer first initiates a call to the business about such plans), and effectively banned telemarketing for Medicare supplement plans. These restrictions are unique among state telemarketing regulations because they are narrowly focused on calls about certain Medicare plans, and may be challenged on First Amendment grounds. In the interim, however, the restrictions will take effect on July 1, 2024.

If you have any questions about how these developments may affect your business, please contact Alysa Hutnik or Jenny Wainwright. For more telemarketing updates, subscribe to our blog.

Telemarketing in 2024 – A Mid-Year Review