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On December 18, the U.S. Court of Appeals for the Eleventh Circuit heard arguments in Insurance Marketing Coalition Limited ("IMC") v. Federal Communications Commission, which was brought by the marketing trade association to challenge the FCC's December 2023 one-to-one consent rule, which is slated to go into effect on January 27, 2025. Under the new rule promulgated under the Telephone Consumer Protection Act, the FCC has modified the definition of "express written consent" and seeks to require comparison shopping websites and other marketers to obtain a consumer's prior written consent to receive calls and texts from one marketing partner at a time.
It has been a common practice among comparison shopping websites and lead generators to ask consumers to provide a single prior express written consent to agree to receive robocalls or robotexts from any of a company's relevant marketing partners. While the FCC has acknowledged that these types of comparison shopping services provide a real benefit to consumers, they were also concerned about potential bad actors inundating consumers with services based on a single consent.
What were some takeaways from the oral argument:
- The Statutory Overreach Argument. IMC's primary argument is that the FCC exceeded its statutory authority by restricting the term "prior express consent" to require individual consent. Counsel for the plaintiffs argued that the rule conflicts with established interpretations and the ordinary meaning of the phrase.
- Administrative Procedures Act and First Amendment Claims. IMC claimed that the rule violated the First Amendment by enacting content-based restrictions on marketers, and also violated the Administrative Procedure Act because the FCC did not "provide a reasoned justification for the choices it made and offer meaningful responses to material comments." While the panel listened to the arguments, they did not engage in much debate with counsel, making it unlikely that the rule will be struck down on these grounds.
- Implementation of Rule Violates the TCPA. Finally, the panel, in particular, focused on whether the rule conflicted with the TCPA's language, which gives the consumer the ability to agree to receive such calls. The panel challenged the FCC and argued that the rule's implementation was a restriction on a consumer's statutory right to consent. The panel highlighted that the rule effectively restricts (or prevents) a consumer's right to consent to multiple marketing partners. In fact, the rule's topicality requirement, which states that consent must be related to the product sought, imposes restrictions beyond the mere implementation of the rule.
Putting It Into Practice: It is unlikely we receive a decision before the January 2025 implementation date. However, the panel seemed to suggest that the FCC overstepped its authority. Whether the Eleventh Circuit invalidates the rule remains to be seen. We will keep monitoring the case for more developments.
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