Any company that obtains "prior express written consent" ("EWC") under the Telephone Consumer Protection Act (TCPA) from consumers through lead generators or comparison shopping websites should already be aware of the Federal Communications Commission's (FCC) One-to-One Consent Order, which is currently slated to go into effect on January 27, 2025. This Order closes the so-called "lead generator loophole." This loophole purports to allow multiple sellers—usually identified within a hyperlink contained in an EWC disclosure—to rely upon a single online lead form in order to demonstrate that a consumer has provided their EWC to each seller. The FCC's concern underlying the new rule is the "current practice of consumers receiving robocalls and robotexts from tens, or hundreds, of sellers" based on the submission of a multi-party lead form, "numbers that most reasonable consumers would not expect to receive." In re Targeting and Eliminating Unlawful Text Messages and Advanced Methods to Target and Eliminate Unlawful Robocalls, FCC No. 23-107 at ¶ 31 (Dec. 18, 2023). Accordingly, the Order amends the EWC definition in a way such that a consumer must provide EWC to each seller individually, i.e., in a one-to-one manner. In other words, a single lead form on a comparison shopping site may no longer constitute EWC for multiple sellers to call the consumer with quotes. This is a significant change from what the TCPA currently permits.
However, the One-to-One Consent Order is being challenged in the US Court of Appeals for the Eleventh Circuit—Insurance Mktg. Coalition Ltd. v. FCC, et al., No. 24-10277 (11th Cir.). There, the petitioner has challenged the one-to-one consent rule as being unlawful because, among other things, the FCC exceeded its authority under the TCPA in issuing the Order. The appeal is fully briefed and the court held oral argument yesterday, December 18, 2024. The Eleventh Circuit panel consisted of Judges Branch, Luck, and Lagoa (three judges appointed by President Trump during his first term), but it was largely Judge Luck leading the questioning of both the petitioner and government respondents. Judge Luck's questions directed to the government, however, may foreshadow how the court will rule.
Judge Luck expressed skepticism of the FCC's authority to require that consumers provide consent on a seller-by-seller basis. More specifically, at the outset of his questions directed towards the government, he noted that, under the TCPA, a consumer has the right to and can provide consent to receive telemarketing calls that he or she wishes to receive. He also agreed that the FCC has the congressional ability to prescribe regulations to "implement" the statute's requirements and protect consumers. However, Judge Luck questioned the government's counsel regarding how limiting a consumer's right to receive telemarketing calls from multiple sellers by providing EWC to those sellers through the submission of a single lead form—a practice found lawful for years (and one that the government conceded is permissible under the TCPA absent its forthcoming one-to-one consent rule)—actually protects consumers. In other words, how does taking away a consumer's ability to provide consent actually protect those consumers? (Another judge on the panel framed the same question in terms of the One-to-One Consent Order's "logically and topically related" requirement.) According to Judge Luck, the implementation of regulations should not restrict consumers' statutory rights. The government pointed to consumer complaints and other concerns about multi-party EWC being abused; but Judge Luck brushed such concerns aside, suggesting that the government should hire more attorneys, open more investigations, and go after the "bad actors."
At the conclusion of the oral argument, Judge Luck explained that there is a fine line between "implementation" and a rule being contrary to or conflicting with a statute. He also expressed his concern that the Order's effective date is approaching at the end of January, asking counsel for the petitioner whether anything prevents the court from staying the One-to-One Consent Order from going into effect before the court issues its decision. (There is none.) This is despite the court having previously denied the petitioner's motion to stay the implementation of the Order pending resolution of the case.
While it is generally difficult to read the tea leaves of how a three-judge appellate panel will rule, especially when the bulk of the questioning at oral argument comes from a single judge, Judge Luck's questions suggest that the One-to-One Consent Order, in fact, may be stayed, and ultimately found to be unlawful and unenforceable. We'll provide an update once the court rules, so stay tuned.
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