On January 24, 2025, a three-judge panel in the U.S. Court of Appeals for the Eleventh Circuit held in Insurance Marketing Coalition v. FCC, No. 24-10277, that the Federal Communications Commission’s (FCC) one-to-one consent requirement rule (the “FCC Rule”) went beyond the FCC’s authority under the Telephone Consumer Protection Act (“TCPA”). The court held that the FCC exceeded its statutory authority, finding that the agency’s “new consent restrictions impermissibly conflict with the ordinary statutory meaning of ‘prior express consent.’”
The FCC’s “one seller at a time” consent rule
The FCC Rule would have required marketers to obtain prior express consent from consumers to receive telemarketing or advertising robocalls—from the consumer to “one seller at a time”—before the consumer received such robocalls. The court characterized the rule at the outset of its decision as “another sweeping rule affecting only telemarketing and advertising robocalls and robotexts,” which the court found fell outside the FCC’s statutory authority to prescribe regulations implementing the TCPA. More specifically, the final one-to-one consent rule required parties making marketing calls using a robocall system to obtain prior express written consent that was both clear and conspicuous and obtained from a consumer “one seller at a time.” Further, any following calls and texts would be required to be “logically and topically associated with the initial interaction that prompted the consent.”
In vacating the FCC Rule, the Eleventh Circuit explained that because the TCPA does not define “prior express consent,” the court was bound to evaluate the plain meaning of the term, including how it has been commonly understood in the common law. In analyzing the plain meaning of prior express consent, the court concluded that to receive a robocall, consumers need only clearly and unmistakably give consent. The FCC Rule would have gone beyond the clear-and-unmistakable consent required by the TCPA by requiring marketers obtain individual one-to-one “prior express consent” from the consumer and limiting any communication to that which was logically and topically associated with an individual’s initial token of consent to the marketer. Because of the inconsistency between the FCC Rule and the common law meaning of “prior express consent,” the court ruled that the FCC had exceeded its statutory authority in promulgating the final FCC Rule.
Many had wondered how this case was going to shake out—given the FCC Rule was set to take effect on January 27, 2025. However, the court’s ruling has vacated the “one-to-one consent” and “logically and topically related” requirements that were set to take effect, with the case itself being remanded to the FCC for further proceedings. Whether the new administration will appeal the decision or otherwise attempt to revive the rule is not yet known. Notably, a number of agencies during the Biden Administration faced challenges to their regulatory authority and exercise of it. And, heightened consent requirements in a number of contexts relating to marketing or data usage—for example, with location information at the Federal Trade Commission—could face similar scrutiny if challenged in court. It will be interesting to see the course set by the new administration as it works through previous consumer protection policy and enforcement activity.