Court vacates the FCC one-to-one consent rule

A federal appeals court has issued a last-minute decision that vacated the FCC’s one-to-one consent rule for robocalls and robotexts. Let’s have a look.

The one-to-one consent rule

The vacated rule was issued in the Commission’s Second Report and Order, Part III D, Closing the Lead Generator Loophole. It was adopted by the Commission on December 13, 2023, and scheduled to become effective on January 27, 2025. This rule requires the following:

1. One-to-One Consent. Telemarketers must obtain consumer consent to receive robocalls or robotexts from one seller at a time. If a website seeks to obtain consent for multiple sellers, then consent must be obtained for each seller separately.
2. Clear and Conspicuous Disclosure. The consent form must explain that the consumer will get robocalls and robotexts from the seller.
3. Logically and Topically Related. Robocalls and robotexts that result from consent must be logically and topically related to the website on which consent was given.

The court decision

The Insurance Marketing Coalition Ltd (IMC) petitioned the United States Court of Appeals for the Eleventh Circuit to review the one-to-one consent rule. IMC argued that the FCC exceeded its statutory authority in this rule by interpreting “prior express consent” in ways that conflict with the ordinary statutory meaning of that phrase.

The court agreed, based upon the following reasons:

1. The TCPA (Telephone Consumer Protection Act) requires “prior express consent” to receive robocalls and robotexts. However, the TCPA does not explicitly define “prior express consent.”
2. When a statute leaves a phrase undefined, courts use the plain and ordinary meaning of the term. They assume that Congress sought to incorporate the common law concept of consent.
3. The common law premise of prior express consent is that:
   1. It was given voluntarily
   2. It was clearly and unmistakably granted (express)
   3. It was given before the person received robocalls or robotexts (prior).

The court found that both the one-to-one and logically-and-topically-related requirements in the new rule conflict with the common law premise of express consent.

Because Congress did not explicitly define “prior express consent,” the court interprets the TCPA as saying that Congress wanted to incorporate the common law concept of consent.

By adding provisions beyond the common law concept of consent, the court found that the FCC exceeded its authority with this rule.

More information

• Court opinion

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