FCC’s newly adopted lead gen rules could accelerate lawsuits against lenders

The Federal Communications Commission (FCC) — the government regulatory body overseeing communications across a wide variety of media including radio, telephone cable and the internet — adopted a new series of rules on Wednesday designed to crack down on controversial lead generation methods, including “robocalling” and “robo-texting.”

The new rules as adopted could bring a wave of lawsuits against those using the so-called “lead gen loophole,” which includes mortgage lenders, insurers and law firms.

These new rules will “further protect consumers from scam communications by directly addressing some of the biggest vulnerabilities in America’s robo-text defenses and closing the ‘lead generator’ robocall/robo-texts loophole,” according to an announcement issued Wednesday by the FCC. “The new rules allow blocking of ‘red flagged’ robo-texting numbers, codifies do-not-call rules for texting, and encourages an opt-in approach for delivering email-to-text messages.”

There are three core provisions for the new rules. They will “allow the FCC to ‘red flag’ certain numbers, requiring mobile carriers to block texts from those numbers,” the FCC said. “The rules also codify that Do-Not-Call list protections apply to text messaging, making it illegal for marketing texts to be sent to numbers on the registry.”

They will also close what the FCC calls the “lead generator loophole,” through which “unscrupulous robocallers and robotexters inundate consumers with unwanted and illegal robocalls and robotexts,” the FCC explained.

“The new rules make it unequivocally clear that comparison shopping websites and lead generators must obtain consumer consent to receive robocalls and robotexts one seller at a time – rather than have a single consent apply to multiple telemarketers at once,” the FCC added. This change will disrupt the current way potential homebuyer leads are bought and sold.

Finally, the FCC has proposed additional steps for new action, including soliciting the public for additional action it can take to combat unwanted robocalls for consumers. A new notice published by the FCC “proposes additional blocking requirements when the FCC notifies a provider of a likely scam text-generating number,” it explained.

“The Commission will also seek further comment on text message authentication – modeled on the successful implementation of STIR/SHAKEN protocols for phone calls – including on the status of any industry standards in development,” the FCC said.

The new notice also proposes “requiring, rather than simply encouraging, providers to make email-to-text services opt-in,” the FCC explained.

Experts who spoke to Reuters speculated before the rules’ adoption that they could allow consumers to bring a wave of lawsuits against those taking advantage of the so-called loophole, with one attorney saying the rules would create a “target-rich environment” in which to sue companies that may rely on such leads under the Telephone Consumer Protection Act (TCPA).

“Businesses that use leads will need to be especially careful to ensure that the contacts they use are in compliance with the new law,” said Andrew Perrong, who has filed dozens of lawsuits both as a plaintiff and as an attorney representing clients suing over unwanted calls, Reuters reported.