The Federal Communications Commission's ("FCC") Telephone Consumer Protection Act ("TCPA") 1:1 consent rule simply won't die ("TCPA Consent Rule"). After the 11th Circuit Court of Appeals' decision on January 25, 2025, the FCC's TCPA Consent Rule appeared dead in the water. Now, however, the National Consumer Law Center ("NCLC") (joined by numerous State Attorneys General), has filed a petition seeking rehearing and requesting that all of the judges in the 11th Circuit reconsider the appellate panel's TCPA Consent Rule decision. Below, we discuss NCLC's petition in greater detail.
Rehearing on TCPA Consent Rule Decision
Joined by a majority of the State Attorneys General, on March 17, 2025, NCLC filed a petition with the 11th Circuit requesting an en banc rehearing of the Court's decision vacating the TCPA Consent Rule. French for "on the bench," "en banc" means a hearing in which all active judges of an appellate court, rather than a smaller panel, sit to hear a case. NCLC's petition asks the Court to reconsider its decision which found that the FCC exceeded its statutory authority by implementing the TCPA 1:1 consent rule. Although NCLC's petition frames this as the issue for the Court to reconsider, the crux of the petition focuses on the alleged harm that illegal robocalls present to consumers. Despite the FCC's and individual state efforts to combat illegal robocalls, NCLC's petition alleges, among other things, that: (1) illegal telemarketing continues unabated; (2) lead generators harvest and sell consumer data to robocallers; (3) consumers have no way of revoking consent because their data is sold to "partner companies – which can number in the thousands"; and (4) the TCPA Consent Rule furthers the TCPA's goal of prohibiting almost all unsolicited telemarketing.
What's the Future of the TCPA Consent Rule?
En banc hearing petitions are disfavored and rarely granted. Because the TCPA Consent Rule decision involves a question concerning the FCC's rulemaking authority under the TCPA, NCLC must demonstrate, and a majority of the Court's active judges must be persuaded, that the TCPA Consent Rule involves one or more questions of exceptional importance. Whereas the TCPA 1:1 consent rule was previously dead, it now appears to be on life support.
Although the TCPA Consent Rule remains in limbo, telemarketing businesses must proceed with caution. The somewhat uncertain status of the TCPA one-to-one consent rule will not prevent the onslaught of TCPA lawsuits from continuing to be filed. As always, companies should assess whether they are employing best practices when placing calls to consumers.
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