Sharing Consumer Telephone Numbers with Third Parties

Businesses can seek to
maximize the scalability of the Internet, as well as other available marketing
vehicles, by partnering with third parties to conduct telemarketing and
lead-generation campaigns on their behalf. 
By utilizing third-party marketers in such a fashion, a business can
greatly expand its ability to reach prospective new customers.

However, the laws
governing telemarketing require specific, unambiguous consumer consent in order
for one party (such as a lead generator) to share that consumer’s phone number
with a third party (e.g., an advertiser) for telemarketing purposes, including
text messaging.  Therefore, lead
generators must obtain each consumer’s consent to be contacted by the business
on whose behalf it is collecting the lead.

Consumer
Consent to Share Telephone Numbers and the TCPA

Under the Telephone
Consumer Protection Act (the “TCPA”), telemarketers must obtain separate,
standalone “prior express written consent” when making telemarketing calls to a
mobile phone using an “autodialer.”  Such
consent is also required when making telemarketing calls to mobile or landline phones
using pre-recorded messages.  A recent
declaratory ruling from the Federal Communications Commission (the “FCC”)
establishes such an inclusive definition of “autodialer” that almost all forms
of telemarketing are considered conducted via an autodialer, and would thus
require consumers’ prior express written consent as set forth in the TCPA and
applicable regulations.

Whether obtaining prior
express written consent via an online form, a signed written document or over
the phone, for consumer consent to be considered valid under the TCPA, it must
be unambiguous, meaning that the
consumer must receive a “clear and conspicuous disclosure” that he or she will
receive future calls/texts that deliver autodialer and/or prerecorded
telemarketing messages on behalf of a specific
advertiser.

Thus, for example,
whether a third-part marketers is generating leads on behalf of a business that
intends to making telemarketing calls to those leads, the marketer must obtain
each consumer’s consent to be contacted specifically at that telephone number
by that business by using language on the applicable web forms (“Submit button”
language) or other acceptable written material that lists the business’ full
legal name, or a registered trade name or d/b/a of that business.

Lead generators may be
able to sell a given consumer lead to multiple advertisers for telemarketing
purposes, but only where each such advertiser is listed by full legal name or
registered d/b/a in the applicable TCPA consent language.

Below is an example of
“Submit button” language that a lead generator could use to satisfy the TCPA’s
standard for obtaining consent for a consumer to be contacted by multiple
advertisers:

Privacy
Policies

In addition to obtaining
consumer consent via an online form, a signed written document or over the
phone, third-party marketers must ensure that their Privacy Policies contain
adequate disclosures concerning the fact that, with the consumer’s consent, the
marketer intends to share the consumers’ telephone numbers for telemarketing
purposes.