While unlikely, there is a slim chance pending Federal Communications Commission changes to the Telephone Consumer Protection Act, particularly the implementation of the one-to-one consent rule, could be halted.
This possibility presented itself after President Donald Trump issued a number of executive orders halting most rules that have yet to be implemented.
Eric Troutman, an attorney specializing in TCPA compliance, said his consumer advocacy group, R.E.A.C.H., has filed an emergency petition with the FCC requesting a 60-day stay. His organization has yet to hear a definitive answer.
The rule, set to take effect Jan. 27, would alter how companies contact potential consumers, including banning the use of auto-dialers for calls or texts without prior consent.
“The FCC has never previously been determined to be an executive agency and most
observers generally refer to it as an independent agency, so it is unclear to me whether the commission will view itself bound by the executive order,” Troutman said. “Nonetheless, the commission still has the inherent ability for good cause to suspend the enforcement of that one-to-one ruling for 60 days.”
The FCC did not respond to a request for comment regarding whether they would grant a stay on the rule.
By pausing the pending rule, companies, such as mortgage lenders, that did not properly prepare for the new rule would get an additional 60 days to get compliant. Also, some minimal tweaks could be added to the rule, such as undoing unnecessary burdens on companies that have subbrands, Troutman added.
“If your consumer [is there for a 30-year fixed mortgage], under the current rule, you’re probably not allowed to try to sell them a different product such as an adjustable rate mortgage or a home equity loan,” he said. “So it really is an issue.”
Randall Bourgeois, founder of compliance firm InboundTCPA, said most of his clients feel like they “need a little bit more time to plan and incorporate some changes.”
But also, there is a deep-rooted fear that the one-to-one consent rule will amount to a tremendous drop in leads, Bourgeois said, so the longer this rule can be postponed from going into effect, the better.
“Mortgage operations are built off of a large volume of leads coming in and getting passed to the agents, that all gets very much disrupted,” said Bourgeois. “I think a lot of companies are trying to push this off as much as possible. But from the consumer perspective, there’s really no value in getting this rule stayed.”
The pending rule is set to complicate consumer outreach for many companies. It will also make the process of loan officers transferring their book of business between mortgage lenders significantly more complex and nuanced.
The reason for this stems from the fact that a consumer’s consent will be “inextricably tied to the servicer provider at the time the lead was generated,” said Matthew Marx, CEO of digital marketing company Evocalize, in a previous interview. Therefore, each time an LO moves, they’ll have to get consent from consumers at their new place of business.
Most stakeholders agree that new changes will likely increase the rate of litigation being filed against originators.
Come April 11, the FCC will also be implementing more simplified means for consumers to refuse contact even if they had previously agreed to it, and they can communicate their decision in any manner they prefer.
Additionally, robo callers and texters will have to honor do-not-call requests in no more than 10 business days from receipt.
