The Federal Communications Commission's ("FCC") one-to-one consent rule was set to take effect on January 27, 2025. That rule had wide-ranging implications for those in the calling community, and would have essentially invalidated most previous forms of prior express written consent that businesses relied upon to make autodialed or prerecorded sales calls. But the Eleventh Circuit, at the 11th hour (how fitting), vacated the FCC's one-to-one consent rule. We discuss the Eleventh Circuit's ruling below. But for now, the most important thing to know is that the FCC's one-to-one consent rule is not effective, and the rules concerning prior express written consent that were effective before January 27, 2025 remain in effect.1 In other words, nothing changed about what you have to do. If it was legal under the TCPA on Friday, January 24, 2025, it remains legal today and business continues as usual.
Insurance Marketing Coalition Limited v. FCC
In Insurance Marketing Coalition Limited v. FCC,2 IMC challenged the lawfulness of the FCC's one-to-one consent rule. Here you can read about the ins and outs of that rule. IMC argued that the FCC's one-to-one consent rule exceeded the FCC's statutory authority. The Eleventh Circuit agreed.
The FCC's one-to-one consent rule concerned prior express written consent, a special form of consent the FCC created to govern sales calls made with the technologies covered by subsection 227(b) of the Telephone Consumer Protection Act ("TCPA") (i.e., calls made with an ATDS, prerecorded or artificial voice). The TCPA prohibits a calling party from making non-emergency autodialed or prerecorded/artificial-voice calls without the called party's prior express consent (this prohibition differs a bit depending on whether the call is made to a called party's cellphone or residential phone). The TCPA does not define "prior express consent." In 2012, the FCC created a rule that prohibited a calling party from making autodialed or prerecorded sales calls without the called party's prior express written consent. That rule included a definition for "prior express written consent" that went into effect in 2015.
In 2023, the FCC amended its definition of "prior express written consent" through its one-to-one consent rule. Under that rule, a called party could only provide his or her prior express written consent to one seller at a time, and their consent was only applicable to autodialed or prerecorded calls that were "logically and topically associated with the interaction that prompted the consent."
IMC explained that under the one-seller aspect of that rule, a consumer could not give his or her prior express consent to multiple entities at once by stating he or she consented to autodialed and prerecorded sales calls from Entity A and Entity B. Instead, the consumer had to check two separate checkboxes, one for Entity A and one for Entity B, to properly consent to receive autodialed and prerecorded sales calls from both entities under the one-to-one consent rule.
The FCC gave the following example for the "logically and topically associated" part of the rule: A consumer giving consent on a car-loan-comparison shopping website does not consent to get autodialed or prerecorded sales calls about loan consolidation because loan consolidation is not logically and topically associated with car loans. The FCC pointed to language in the TCPA that allows it to "prescribe regulations to implement" the TCPA as its authority for its one-to-one consent rule. The Eleventh Circuit agreed that the FCC has that authority. But the Eleventh Circuit ruled that the FCC does not have the authority to "alter" the TCPA, which the Eleventh Circuit determined the FCC's one-to-one consent rule tried to do.
Specifically, the Eleventh Circuit found the FCC's one-to-one consent rule to alter the meaning of "prior express consent," which, due to Congress's decision not to define that term, is properly defined through its ordinary, common law meaning. The Eleventh Circuit essentially ruled that the FCC's one-to-one consent rule's restriction of the term "prior express consent" improperly restricted consumers' right to consent to receive calls from multiple entities about a variety of subjects. As a result, the Eleventh Circuit vacated (nullified) the FCC's one-to-one consent rule.
The Eleventh's Circuit's ruling is a big win for those in the calling community. But it also introduces a question that may be useful to those seeking to oppose other FCC TCPA rules: When is the FCC properly using its authority to "prescribe regulations to implement the TCPA, and when is it altering the TCPA? Is it's written condition for "prior express consent" permissible? Is its conclusion that a "call" is somehow also a "text message" permissible? The list goes on.
FCC's Stay
Interestingly, only a half hour before the Eleventh Circuit issued its opinion, the FCC, of its own accord, postponed the effective date of its one-to-one consent rule by potentially up to a year. But the FCC's postponement is now moot due to the Eleventh Circuit's ruling. While the FCC could seek to have the U.S. Supreme Court review the Eleventh Circuit's decision, we see this as unlikely. The next move may come from the Hill: Congress can, of course, give the FCC greater regulatory authority.
Footnotes
1 The following is the definition of prior express written consent that remains in effect: "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 written agreement shall include a clear and conspicuous disclosure informing the person signing that: (A) by executing the agreement, such person authorizes the seller to deliver or cause to be delivered to the signatory telemarketing calls using an automatic telephone dialing system or an artificial or prerecorded voice; and (B) the person is not required to sign the agreement (directly or indirectly), or agree to enter into such an agreement as a condition of purchasing any property, goods, or services.
- The term "signature" shall include an electronic or digital form of signature, to the extent that such form of signature is recognized as a valid signature under applicable federal law or state contract law.
2 No. 24-10277, 2025 U.S. App. LEXIS 1600 (11th Cir. Jan. 24, 2025)
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