Eleventh Circuit Vacates FCC One-to-One Consent Rule

The FCC’s rule to redefine the meaning of “prior express written consent” under the Telephone Consumer Protection Act (TCPA), is on hold. The rule was to have taken effect Jan. 27 and require those making automated marketing calls to cell phones and residential land lines to have prior express written consent.

Initially, the FCC’s Consumer and Government Affairs Bureau said the rule would be postponed by one year, but soon after, the rule was struck down by the U.S. Court of Appeals for the Eleventh Circuit, according to an article posted by The National Law Review.

Background

The rule was written to combat unwanted and illegal telemarketing calls and texts, according to the FCC, and would have closed a lead generator loophole. The rule would have expressly prohibited lead aggregators, texters, and callers from using a single consumer written consent to inundate consumers with unwanted telemarketing robocalls and robotexts from sellers when consumers visit comparison shopping websites. The rule would have required each caller and texter that was soliciting services to obtain a consumer's prior express written consent before making such robocalls or robotexts.

The FCC defines prior express written consent as “an agreement, in writing, bearing the signature of the person called that clearly authorizes the seller to deliver or cause to be delivered to the person called advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice, and the telephone number to which the signatory authorizes such advertisements or telemarketing messages to be delivered.”

The Ruling

In a unanimous decision by the U.S. Court of Appeals for the Eleventh Circuit, the justices held that the FCC exceeded its statutory authority under the TCPA and that the restriction falls outside the scope of the FCC’s statutory authority to implement the TCPA.

With respect to the one-to-one consent requirement, the court stated that “our cases show that to give prior express consent to receive a robocall, one need only clearly and unmistakably state, before receiving the robocall, that the consumer is willing to receive the robocall. One-to-one consent is not required.” 

Additionally, the court held that the FCC’s own brief provided support for the court’s conclusion because it concedes that a consumer could give “prior express consent” to numerous intermediaries under the TCPA where its 2023 Order states otherwise.

Moving Forward

The FCC is expected to address the Eleventh Circuit ruling shortly, according to the National Law Review article.