As we previously discussed here, the Federal Communications Commission's (FCC) new One-to-One Consent Rule, which amends the Telephone Consumer Protection Act (TCPA), was set to go into effect on January 27, 2025.
While the identified goal of the FCC was to close the "lead generator loophole," this new rule, among other requirements, would require all businesses seeking to send any marketing text messages to obtain consent from the customer for one identified seller (business) at a time..
Delayed to January 26, 2026. On January 24, 2025), the FCC announced that it would be delaying the enforcement of the One-to-One Consent rule for 12 months to January 26, 2026. The FCC specifically cited to an ongoing U.S. Court of Appeals for the 11th Circuit petition filed by the Insurance Marketing Coalition (IMC). Per the FCC: "We find that justice requires postponing the effective date of the new rule pending judicial review." Lastly, the FCC argued that the delay may facilitate businesses' compliance with the rule if the court upholds the One-to-One Consent Rule.
Overturned by the 11thCircuit. Shortly after the above announcement by the FCC to delay enforcement, the U.S. Court of Appeals for the 11th Circuit held that the FCC rule went beyond the FCC's statutory authority. This court found that the new rule conflicted with the ordinary meaning of "prior express consent" as required under the TCPA. Moreover, the TCPA does not have any requirement limiting marketing messages to what is "logically and topically associated with the interaction that prompted the consent." This means, for now, the One-to-One Consent Rule is effectively vacated. However, to note, many carriers and texting platforms, as a business rule, have started requiring businesses to demonstrate their compliance with one-to-one consent, including requiring language in the business' privacy policy stating that it would not share text message opt-in consent with third parties. Thus, if a business uses a third-party vendor to send marketing texts and messages, that vendor may still require that business to obtain one-to-one consent.
Taft's Privacy & Data Security team has extensive experience counseling clients on consumer data privacy laws, data minimization strategies, and data governance program development
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