The Federal Communications Commission's (FCC) so-called One-to-One Consent Rule, which would have required that consumers provide "prior express written consent" to one seller at a time in order to receive certain types of "logically and topically associated" telemarketing calls and text messages under the Telephone Consumer Protection Act (TCPA), was slated to go into effect yesterday, January 27, 2025 — until it wasn't.
Last month, we covered the oral argument held in Insurance Marketing Coalition Ltd. v. FCC, No. 24-10277 (11th Cir.) (hereinafter, IMC), in which a consortium of insurance industry stakeholders challenged the One-to-One Consent Rule. Additionally, a separate administrative petition was filed at the FCC requesting that the Rule be stayed. Late afternoon last Friday, January 24, 2025, at the proverbial eleventh hour, both the FCC and the Eleventh Circuit issued rulings that largely gutted the One-to-One Rule.
First, the FCC issued a three-page Order postponing the effective date of the One-to-One Rule by twelve months to late January 2026. In part, the agency based its decision on the pending IMC litigation: "[w]e find that justice requires postponing the effective date of the new rule pending judicial review." The Commission also noted that some commentators to the Rule had expressed "serious concerns" about their ability to comply with the Rule by January 27, 2025, the effective date, and that "allowing the rule to take effect . . . likely will cause significant burdens for multiple parties[.]" Essentially, the FCC stayed the Rule based on a reverse of the primary jurisdiction doctrine (the doctrine that permits courts to stay cases to await guidance from an administrative agency). However, the FCC made clear that "[t]he previous requirements for prior express written consent . . . will remain in effect." Either way, the FCC Order constituted a nice reprieve for the industry.
Minutes after the FCC issued its Order postponing the effective date of the One-to-One Rule, the Eleventh Circuit issued its decision in IMC. Characterizing the Rule as "another sweeping rule affecting only telemarketing and advertising robocalls and robotexts," as opposed to non-telemarketing communications, the court held that "the FCC exceeded its statutory authority under the TCPA because the [Rule's] new consent restrictions impermissibly conflict with the ordinary statutory meaning of 'prior express consent.'" The court held that the new Rule did not implement the TCPA but, rather, was the Commission's attempt to enact extra-legal requirements not contemplated by the statute. More specifically, the court found that neither the one-to-one consent restriction nor the "logically and topically associated" requirement passed muster.
Concerning the one-to-one consent restriction, which the court characterized as imposing "'prior express written consent' plus" on telemarketers—something the TCPA does not require—the Eleventh Circuit explained that the FCC exceeded its statutory authority to prescribe regulations that "implement" the TCPA. Indeed, rather than implementing the statute, the Commission's one-to-one consent requirement conflicted with the ordinary meaning of "prior express consent" under the TCPA and, in fact, harmed consumers by limiting their right to consent to receive telemarketing calls that they want:
Under the [One-to-One Consent Rule], even if a consumer "clearly and unmistakably" states, before receiving a robocall, that he is willing to receive telemarketing or advertising robocalls from multiple entities, the [Rule] provides that consent cannot be given unless the consumer independently and separately consents to receive robocalls from each individual caller. In so doing, the [Rule] exceeds the FCC's statutory authority.
In short, "[o]ne-to-one consent is not required. Because the one-to-one consent restriction attempts to alter what we have said is the ordinary common law meaning of 'prior express consent,' the restriction falls outside the scope of the FCC's statutory authority to 'implement' the TCPA." As a parting shot, the Eleventh Circuit easily rejected the FCC's "Hail Mary" argument that, because the One-to-One Consent Rule is good policy, it must be lawful—"Atextual good policy cannot overcome [the] clear text" of the TCPA hard stop.
The IMC court reached a similar conclusion regarding the "logically and topically associated" restriction, which would have restricted the consented-to telemarketing calls or text messages to be "logically and topically associated with the interaction that prompted the consent." Again, the restriction would have precluded consumer consent to receive different types of telemarketing calls, which flies in the face of the concept and meaning of "prior express consent" under the TCPA. Such a restriction did not constitute the FCC's "implementation" of the statute. Rather, it was an attempt to rewrite the TCPA altogether. As it did with the one-to-one consent restriction, the Eleventh Circuit explained that good policy cannot overcome the statute's unambiguous terms. Accordingly, the court vacated the One-to-One Rule.
So, there you have it—a one-two punch to the One-to-One Consent Rule by the FCC and Eleventh Circuit just hours before the regulation was set to take effect. While the new Rule has been vacated, the TCPA remains a dangerous statute. Any company that engages with customers or consumers over the phone (or by fax) should be aware of the statute and closely scrutinize its compliance practices. An ounce of compliance counseling today can help head off a pound of TCPA class action pain later.
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