Eleventh Circuit Deals Fatal Blow to the TCPA’s One-to-One Consent Rule

Overview

Late in the afternoon on January 24, 2025, the Federal Communications Commission’s (FCC) “One-to-One Consent Rule,” which was scheduled to take effect on January 27, 2025, was struck down and vacated by the US Court of Appeals for the Eleventh Circuit in Insurance Marketing Coalition Limited v. Federal Communications Commission. The rule, which the FCC purported to issue pursuant to its authority under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, would have prohibited companies from obtaining “bundled consent” from consumers to marketing calls and text messages from multiple sellers and instead required that consumers provide consent to such calls and text messages on a one-to-one (or seller-by-seller) basis.

The Eleventh Circuit’s decision was prompted by a challenge to the FCC’s rule brought by the Insurance Marketing Coalition (IMC). The IMC argued that the FCC exceeded its authority under the TCPA by interpreting the phrase “prior express consent,” as used in the statute, to mean that a consumer can “authorize[] no more than one identified seller” at a time when providing prior express consent. As Goodwin has explained, this reinterpretation had significant implications for the lead generation industry and would make comparison shopping more challenging for consumers.

Just moments before the release of the Eleventh Circuit’s decision invalidating the rule, the FCC postponed the effective date of the One-to-One Consent Rule for one year or until the Eleventh Circuit issued a decision on the petition filed by the IMC, whichever occurred sooner. Although the FCC’s postponement order indicated that it would declare a new effective date if the rule was upheld, it is now unclear how the FCC will respond in the aftermath of the Eleventh Circuit’s ruling, and whether it will pursue a revised rule to limit the number of sellers a consumer can provide consent to at any one time. For now, however, the existing TCPA regulations and requirements remain in effect and bundled consent remains permissible.

The IMC’s Challenge and the Eleventh Circuit’s Ruling

The IMC challenged the FCC’s One-to-One Consent Rule in the Eleventh Circuit on January 26, 2024. It argued that the FCC exceeded its statutory authority, violated the First Amendment, and acted arbitrarily and capriciously under the Administrative Procedure Act (APA), 5 U.S.C. § 706. In light of the January 27, 2025, compliance deadline, the appeal had been expedited, with oral arguments heard on December 18, 2024.

The FCC tried to justify its new, additional one-to-one “prior express consent” restrictions by claiming that the restrictions were consistent with the common understanding of the phrase “prior express consent.” Specifically, the FCC argued that consumers cannot be presumed to have “voluntarily” or “willingly” consented to receive calls unless they consent to the calls on a one-to-one (or seller-by-seller) basis.

But the FCC’s arguments did not persuade the Eleventh Circuit, which sided with the IMC and held that the FCC exceeded the bounds of its authority in promulgating the rule. The court began by interpreting the plain meaning of “prior express consent,” which it took to mean consent that is clearly and unmistakably stated by the consumer. According to the court, “[t]he TCPA requires only ‘prior express consent’—not ‘prior express consent’ plus.” The FCC’s one-to-one consent restriction, the Eleventh Circuit held, could not be squared with this plain understanding of “prior express consent.” Indeed, the Court of Appeals noted that the FCC itself had conceded that consent could be voluntarily and willingly given to “multiple entities all at once.” The Eleventh Circuit also explained that the FCC’s intentions of effecting “good policy” were not enough to save the rule: “Atextual good policy cannot overcome clear text.” Because the One-to-One Consent Rule required “prior express consent plus,” which the FCC had “no authority to dictate,” the court invalidated the FCC’s one-to-one consent requirement.

The Eleventh Circuit also rejected the FCC’s defense of the requirement that calls be “logically and topically associated with the interaction that prompted the consent.” Here, too, the court concluded that the FCC had “no authority” under the TCPA to “mandate such a result.” It explained that the TCPA requires only that a consumer “clearly and unmistakably state[], before receiving the robocall, that he is willing to receive a robocall.” Because the “logically and topically associated” requirement went above and beyond what Congress mandated in the TCPA, the court held the FCC had exceeded its authority in promulgating that requirement.

The FCC’s Response — Postpone the Effective Date

Acknowledging that affected companies were placed into the difficult position of having to comply with a January 27 deadline while a court decision was imminent, the FCC decided to postpone the effective date of the One-to-One Consent Rule by a year, or whenever the Eleventh Circuit issued a decision on IMC’s challenge. The FCC stated that it was “in the interest of justice” to postpone the rule from taking effect, “to avoid subjecting texters and callers acting in good faith to the risk of having to defend themselves against private suits seeking statutory damages for a period in which the rule is still undergoing judicial review.”

Conclusion

In light of the Eleventh Circuit’s holding that the FCC lacks any statutory authority to promulgate requirements that look like the One-to-One Consent Rule, it seems unlikely that the FCC will try to revive this rule or issue a similar rule. And once it reaches its full complement, the Republican-majority FCC, led by Chair Brendan Carr, may opt to pursue other priorities. For now, lead generators and lead buyers can continue to operate in compliance with the existing TCPA frameworks requirements relating to prior express consent.

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This informational piece, which may be considered advertising under the ethical rules of certain jurisdictions, is provided on the understanding that it does not constitute the rendering of legal advice or other professional advice by Goodwin or its lawyers. Prior results do not guarantee similar outcomes.