In 2023, the FCC issued a legislative rule interpreting the meaning of the phrase “prior express consent” as used in the TCPA. The proposed rule sought to close the “lead generator loophole,” and would impose new consent requirements on telemarketers. First, it would require both “one-to-one” consent, meaning telemarketers must individually obtain “prior express written consent” from consumers for each entity attempting to make robocalls to those consumers. Second, it would require that the robocalls consented to were logically and topically associated with the interaction that prompted the consent. In other words, telemarketers could not obtain “prior express written consent” to make robocalls to consumers using their milk sales website to also make robocalls to that consumer about cookies.
On January 24, 2025, the Eleventh Circuit found that the proposed rule was invalid and held that the FCC exceeded its statutory authority under the TCPA when it enacted the proposed rule because its new consent restrictions “impermissibly conflict with the ordinary statutory meaning of “prior express consent.”
The One-to-One-Consent Restriction
In rejecting the one-to-one-consent restriction, the Eleventh Circuit noted the breadth of “prior express consent” under the TCPA, highlighting both in-circuit and out-of-circuit cases in which called parties were found to have given prior express consent to multiple entities at one time. Id. at 18.1 Further, the Eleventh Circuit noted that the FCC itself acknowledged in its briefing that a consumer could give “prior written consent” under the TCPA to receive robocalls from multiple entities without consenting separately to each caller, but that such consent would not satisfy the 2023 Order’s one-to-one-consent restriction. Order at 19. Though the FCC argued that a consumer should not be presumed to have willingly consented to receive robocalls from more than one entity at a time, the Eleventh Circuit found that the restriction exceeded the FCC’s statutory authority to “implement” the TCPA. Id. at 18. The court also concluded that, despite the FCC’s argument that the 2023 Order was “good policy,” “atextual policy cannot overcome clear text.” Id. at 20.
The Logically-and-Topically Related Restriction
The Eleventh Circuit next tackled the “logically-and-topically related restriction,” finding that, like the one-to-one consent restriction, it also impermissibly altered the meaning of “prior express consent.” Id. at 21. The court noted that a consumer shopping online for auto loans on an auto loan website could check a box consenting to calls from a bank about auto loans and, additionally, check a box consenting to calls from that same bank about loan consolidation and, under the 2023 Order, the consent to receive calls about loan consolidation would be invalid. Id. at 21-22. Why? Because the consumer was not on a loan consolidation website—they were on an auto loan website. Under the TCPA, however, a consumer has given “prior express consent” when they clearly and unmistakably state, prior to receiving a robocall, that they are willing to receive the robocall.2 Ultimately, the Eleventh Circuit found that, “[j]ust like the one-to-one consent restriction . . . this restriction impermissibly alters what it means to give “prior express written consent.” Id. at 21.
In its attempt to “implement” the TCPA, the FCC overstepped statutory boundaries. “Agencies have only those powers given to them by Congress, and ‘enabling legislation’ is generally not an ‘open book to which the agency [may] add pages and change the plot line.’” But changing the plot line is exactly what the FCC tried to do here. “Congress drew a line in the text of the statute” between “prior express consent” and something more burdensome. Rather than respecting the line that Congress drew, the FCC stepped right over it.
Id. at 26.
If a TCPA case has been filed against your company, consider whether the regulations the plaintiff has invoked fit within the plain language of the TCPA and the FCC’s statutory authority to implement, rather than alter, the statute’s plain language. Buchanan Ingersoll & Rooney PC attorneys have vast experience litigating TCPA claims, as well as claims brought under the TCPA’s state law equivalents, including the Florida Telephone Solicitation Act. Buchanan attorneys also work with companies to optimize their telemarketing policies for compliance with TCPA and its state law equivalents.
Footnotes
1. See Gorss Motels, Inc. v. Safemark Sys., LP, 931 F.3d 1094, 1100-02 (11th Cir. 2019)(fax recipients gave “prior express permission” to receive faxed advertisements by agreeing in a single franchise agreement to receive faxes from a both a specific hotel and its affiliates); Mais v. Gulf Coast Collection Bureau, 768 F.3d 1110, 1124–25 (11th Cir. 2014) (finding prior express consent where the plaintiff’s wife consented to robocalls from more than one entity at a time); Lucoff v. Navient Sols., LLC, 981 F.3d 1299, 1306 (11th Cir. 2020) (finding prior express consent where the plaintiff agreed to receive calls from multiple entities); Fober v. Mgmt. & Tech. Consultants, LLC, 886 F.3d 789, 791, 793–94 (9th Cir. 2018) (similar); Baisden v. Credit Adjustments, Inc., 813 F.3d 338, 346–47 (6th Cir. 2016) (similar).
2. See Gorss Motels, 931 F.3d at 1100; Schweitzer, 866 F.3d at 1279.
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