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FCC Proposed Changes: Potential Impacts for Medicare Sales Agents

April 2023


Disclaimer: Executive FMO and its partners, affiliates, and associates do not provide legal advice. The information in this post is for educational and informational purposes only.


The Medicare sales industry is facing a new series of headwinds following the CMS final ruling targeting scope of appointments and telesales. Following the CMS final ruling, the FCC is proposing several key rule changes focusing on communication and lead generation.

In this article, we will review the proposed changes (as of April 2023) and provide context.


What are the FCC Proposed Changes?

These proposed changes refers to a series of proposals filed by the FCC entitled, "Targeting and Eliminating Unlawful Text Messages Report and Order and Further Notice of Proposed Rulemaking" (DA/FCC #: FCC-23-21. Document/RM: 21-402, 02-278).

It is important to note that the proposed changes we will be discussing are in discussion and review stages. These proposed changes were discussed in an (un)related final ruling focusing on disrupting unlawful text messages. A copy of the ruling is available here (starting on page 48). Quotes in this article (unless otherwise cited) are from this ruling document.



Lead Generator Loophole

The FCC is proposing to modify the “loophole,” by narrowing the definition of “prior express written consent,” 47 CFR § 64.1200(f)(9), to state that a consumer can only validly give consent to communications from “multiple entities” at once if:

  • “[T]he entire list of entities” is “clearly and conspicuously displayed to the consumer at the time consent is requested” which means, at a minimum, “displayed on the same webpage where the consumer gives consent;” and

  • The entities are “logically and topically associated.”

It is important to note that the FCC has not currently defined “Logically and topically” associated.

An excerpt of the proposed changes related to the lead generator loophole:

"D. Closing the Lead Generator Loophole

  • 58. We propose to ban the practice of obtaining a single consumer consent as grounds for delivering calls and text messages from multiple marketers on subjects beyond the scope of the original consent.

  • 59. In an illustration of the issue, Assurance IQ describes a website that purports to enable consumers to comparison shop for insurance. The website sought consumer consent for calls and texts from insurance companies and other various entities, including Assurance IQ’s “partner companies.” The “partner companies” were listed in a hyperlink on the web page (i.e., they were not displayed on the website without clicking on the link) and the list of “partner companies” included both insurance companies and other entities that did not appear to be related to insurance.

  • 60. Public Knowledge argues that lead generators and data brokers use hyperlinked lists to harvest consumer telephone numbers and consent agreements on a website and pass that information to telemarketers and scam callers. Commenters also provide an example of another insurance company website that has 8,423 entities on the hyperlinked page. The telemarketer that obtains the consumer’s contact information from the lead generator may believe that it has the consumer’s prior express consent, but, commenters argue, the consumer has not consented to the particular caller or callers, which may be listed as “partner companies” in these arrangements.

  • 61. We seek comment on amending our TCPA consent requirements to require that such consent be considered granted only to callers logically and topically associated with the website that solicits consent and whose names are clearly disclosed on the same web page. The Commission has not addressed this aspect of consent in the past. Would our proposal better protect consumers from receiving large numbers of calls and texts they do not wish to receive when they visit websites such as comparison shopping websites? Consumers may find comparison shopping websites helpful; how can we ensure that they can consent to obtain further information from the site without receiving numerous calls and texts from unrelated companies? Commenters should discuss whether our proposal would limit the value of comparison-shopping sites to consumers. Are there alternatives to our proposal that would better protect consumers from the harms we have identified? We also seek comment on Public Knowledge’s request that prior express consent to receive calls or texts must be made directly to one entity at a time

  • 62. More broadly, we seek comment on the extent of the problem, our proposed rule, and whether the proposed rule will clarify consent and help to eliminate illegal text messages and calls. Are there different or additional limitations on multi-party consent we should consider?"

The Future of Telesales

These changes are still being developed and the recent CMS final ruling did not address third-party lead generation yet...

"We are not addressing our proposal to prohibit TPMOs from distributing beneficiary contact information in this final rule and may address it in a future final rule.”

Change is on the horizon - agents and agencies need to have a comprehensive understanding of self lead generation and digital marketing.


Is your agency equipped with the information, tools and partnerships to rapidly pivot in a dynamic environment? If you're looking to scale your business or learn more about our services, please contact us today!

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