Last week, the United States Court of Appeals for the Eleventh Circuit vacated the Federal Communications Commission's ("FCC") 1:1 consent rule. As our readership will recall, the FCC previously voted 4-1 to revise consent rules governing the receipt of telemarketing communications under the Telephone Consumer Protection Act ("TCPA"). In an effort to close what it deemed the "lead generator loophole," the FCC crafted the 1:1 consent rule, which would have required most websites and lead generators to completely overhaul the processes by which they acquire TCPA consent. Before the 1:1 consent rule was due to take effect, however, a marketing coalition filed a petition for review with the Eleventh Circuit.
At oral argument, the Eleventh Circuit expressed concern that the FCC had overstepped its authority by implementing the rule and, in issuing its decision to vacate the measure, ruled resoundingly against the FCC. The matter has now been remanded, and the FCC will now have to revert to relying on its enforcement authority to police the industry via pre-existing TCPA regulations. Stated differently, the FCC's 1:1 consent rule, which was originally set to take effect on January 27, 2025, is effectively dead.
What Does the Future Hold for the 1:1 Consent Rule?
Will Congress step in and rewrite the TCPA along the lines of the 1:1 consent rule? It is too early to tell. However, it is important to point out that telemarketing businesses would benefit from implementing practices in accordance with the 1:1 consent rule even though it was vacated. Businesses that implement such practices stand to benefit from, among other things:
- Higher quality leads;
- Reduced risk of TCPA complaints and/or threats of litigation; and
- Leads sold at a higher price point (a positive or negative, depending on which side of the sale you are on).
What Does 1:1 Consent Revocation Mean for TCPA Litigation Moving Forward?
Now that the 1:1 consent rule has been vacated, the telemarketing industry can breathe a long sigh of relief. Whichever direction the FCC chooses to take from here, telemarketing companies have a good idea of where they should focus compliance efforts on a going forward basis.
For the time being TCPA complaints will not contain any allegations concerning 1:1 consent. In addition, we know that Facebook v. Duguid complicated matters for TCPA plaintiffs trying to establish that certain telemarketing equipment qualifies as an autodialer for TCPA purposes. Both developments are positive for the telemarketing industry. However, telemarketing businesses must remain vigilant. Numerous lawsuits continue to be filed every day alleging violations of the TCPA and/or its state analogues, otherwise known as "mini-TCPAs." Note that TCPA litigants have become increasingly reliant on allegations of prerecorded voice call and National Do Not Call registry violations. Companies should take this time to ensure that they employ best practices with respect to both of these avenues of litigation risk.
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