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While big tech seems relieved that TikTok got a presidential bailout, I’m more interested in whether the FCC’s new one-to-one consent requirement will become law on January 27.
In seven days, online comparison shopping is set to change dramatically. This rule will change how these and other lead generation sites handle your consent.
What Is One-to-One Consent?
Lead generation sites will no longer be allowed to resell your consent to third-party partners without explicitly asking your permission for each one. Consents will also be tied to their original purpose.
For example, if you were shopping for a second mortgage, that consent could only be used for that specific request. It couldn’t be repurposed to market something unrelated, like a reverse mortgage, just because the third party also happened to know your age.
Why This Matters
This rule is a direct attack on the consent farms.
These are the sites that collect your information and hide vague, deceptive terms in their agreements to justify sharing your consent and your data with as many as 5,000 partners. The FCC’s ruling puts an end to this exploitation.
When the commission first announced its intention, lead generation sites made a loud plea about the material harm this rule would cause their business. They found few sympathetic ears. Republican or Democrat, punking the consumer is a universal no-no.
But then, others started to chime in. Apparently lead generation has wider go-to-market implications than just being a tool for consent farms.
LendingTree and Small Business Administration Find Common Ground
The challenges facing SMBs have taken center stage in the debate over the FCC’s new one-to-one consent rule.
The Small Business Administration (SBA) asked its fellow executive branch organization to delay implementation, concerned that the ruling would cause confusion for SMBs and conflict with state privacy laws. It also argues that the ruling only favors big businesses.
LendingTree echoes this perspective. While asserting that it is not a “harvester” of leads, its testing revealed that the changes, as currently proposed, would leave established businesses largely unaffected while hamstringing smaller, lesser-known brands.
If applying LendingTree’s argument to insurance, a company like State Farm will fare just fine with this restriction because of its brand awareness, but Larry and Donna’s Insurance Co. would not. Think about it: If you were shopping on LendingTree and it asked your permission to give State Farm your consent versus Larry and Donna’s Insurance Co., which one would you pick?
To its credit, LendingTree has actually offered a proposal where there is an exception for curated comparison-shopping platforms and where:
- Consent is valid for ninety days.
- Consent is limited to specific, named entities.
- Consumers retain the ability to revoke consent anytime.
- Prohibit resale or sharing of consent beyond named entities.
This approach seems like a reasonable compromise, especially as it keeps consumers in control of their consent.
LendingTree made this recommendation on December 6, long after the FCC had already announced its implementation date. Others such as Quote Velocity and the Online Lenders Alliance have continued lobbying for changes, with even louder voices.
This persistence feels unusual. Typically after a decision like this, flagship commenters accept the outcome and move on, leaving behind more generic or lower-quality feedback. But here, the noise has only grown.
It raises an interesting question: What if the FCC, under the new administration, carved out an SMB exception?
Beyond robocalls, supporting SMBs is one of the few areas that unites Washington policymakers. Could this become the loudest and most compelling argument in the rule’s implementation?
Sidebar: The Docket Digest
Last year I started a subscription-based substack, The Docket Digest, that takes the FCC’s ECFS and EDOCS filings and summarizes them for subscribers. It is a great way to see what issues the industry cares about. Most businesses try to stay away from regulatory engagements, so when they do, they are revealing what’s important to them. Search the archives to see a play-by-play of the one-to-one docket. (Note: A subscription is required to read.)
Other Challenges with the Rule
Before we talk about what Chair Carr will do, there are several unknowns in the current rule.
First, it’s unclear whether texts are fully included. While the rule states it applies to both robocalls and robotexts, the Facebook v. Duguid Supreme Court decision complicates matters. That ruling effectively nullified the autodialer angle of TCPA liability for most calls and texts by redefining the requirement of an autodialer. With nothing now qualifying as an autodialer, TCPA cases have shifted focus to Do Not Call (DNC) violations—an area the ruling does not address.
Second, it’s unclear if the consent requirement is retroactive. Does this mean that, starting January 28, companies can no longer share consent obtained under the old rules? Or does it mean all consents collected before January 27 are invalidated? Opinions vary, but the FCC has remained silent.
Third, the rule faces a legal challenge in the Eleventh Circuit. In International Marketing Coalition (IMC) v. FCC IMC argues that the FCC has overstepped its statutory authority in rewriting the rules of consent. The oral arguments are worth listening to—they’re quite entertaining. It’s clear that the court is focused on whether the FCC exceeded its authority, and it has agreed to rule on the case expeditiously.
How Realistic Is a Postponement?
The rule passed unanimously, with all commissioners voting in favor. While one Republican commissioner raised concerns about the SMB issue, Chair-Designate Carr remained silent—though he still voted for it. This could suggest he’s leaving himself room to reconsider the SMB question.
Carr, already confirmed by the Senate as commissioner, doesn’t need a new Senate confirmation for his promotion to chair. In theory, this means he could act on this matter within the next seven days.
Finally
There’s a fast true-or-false quality to what Chair-Designate Carr would do, which is oddly comforting. It should also come as no surprise that I’m a fan and defender of SMBs, especially small businesses, the original entrepreneurs. They are the long tail that has kept the economy afloat through every boom and bust cycle.
So while I’m a big supporter of the one-to-one rule, I’ve been following the filings in real time thanks to The Docket Digest (see sidebar) and have come to realize this rule could hurt the little guy.
Big companies will find ways to get your consent. They have the sophistication and resources to collect zero-party data directly from consumers. But Larry and Donna, running their mom-and-pop insurance shop? Not so much.