All right, major TCPA developments on Friday.

The biggest news was the outcome of the Insurance Marketing Coalition’s (IMC) Hobbs Act petition to the Eleventh Circuit Court of Appeals challenging the Federal Communication Commission’s (FCC) new one-to-one express consent ruling under the Telephone Consumer Protection Act (TCPA).

The one-to-one consent rule–which was scheduled to go into effect today (January 27, 2025)– would have required consumer’s to specifically identify the entity to whom they were providing consent when filling out online webforms. It would have also required consent to be “topically and logically” related to the transaction that lead to the consent.

The rule was implemented to help cut down on unwanted robocalls arising from websites that resale consumer data numerous times based upon fine print disclosures consumers do not always read or understand.

According to the Eleventh Circuit, however, the FCC overstepped its authority by unduly limiting the consumer’s right to consent in its ruling.

Let’s break it down.

In Insurance Marketing Coalition v. FCC, 2025 WL 289152 (11th Cir. 2025) the key issue addressed by the Court was whether the FCC exceeded its statutory authority under the TCPA in issuing its 2023 Order because the one-to-one-consent and logically-and topically related restrictions impermissibly conflict with the ordinary statutory meaning of “prior express consent.” The Court concluded that it did, and the reasons for this conclusion are incredibly important.

First, the Eleventh Circuit took a very limited view of the FCC’s ability to “implement” the TCPA and found it had power only to perform those actions necessary to “complete, perform, [or to] carry into effect.” It the Court’s view the FCC could not “alter” any part of the statute as part of implementation. Rather it could only “reasonably define” the TCPA’s provisions.

The Court then focused on the TCPA’s statutory language. The TCPA permits calls made using regulated technology when the consumer has provided “express consent.” Critically, in the Court’s view the TCPA does not require “express consent plus.” So although the FCC has some ability to define and implement the phrase “express consent” it may not impose additional requirements and restrictions that exceed the intended scope of the phrase.

In light of this reality the Court framed the issue for review through the lens of two questions: i) to give “prior express consent” for telemarketing or advertising robocalls, must a consumer always consent to calls from only one entity at a time; and ii) can a consumer give “prior express consent” to receive telemarketing or advertising robocalls only when the consented-to calls are “logically and topically associated with the
interaction that prompted the consent”?

Pause.

Notice what an incredibly restrictive paradigm this presents for agencies.

If an agency is given authority from Congress to enforce a nationwide seatbelt ban and determines a seatbelt must be 3 inches in width, would the Court question “to wear a seatbelt must a consumer always have a belt 3 inches in width?” To articulate the ability of an agency to act by looking at the question through the lens of whether any portion of a statutory provision is limited by an agency rule is seemingly tantamount to destroying an agency’s ability to act.

To define is to limit, after all. Any effort to “reasonably define” a TCPA provision will necessarily limit it to some degree.

But the IMC court determined the FCC’s ruling failed specifically because its definition limited the TCPA express consent provision.

In the Court’s view, the definition of prior express consent has largely already been determined by case law. In its view express consent is consent “that is clearly and unmistakably granted by actions or words, oral or written…” and given before the robocalls or texts are made. Seemingly any expression of the law beyond this common law approach was doomed to meet with failure in the Court’s eyes as conflicting with the “plain language” of the statute, as interpreted by the courts.

Pause again.

Notice the huge shift in reasoning in addressing agency action here following Loper Bright. Not long ago (like this time last year) an agency’s determination of the meaning of a statute would be given wide deference by the courts. Now the IMC court essentially afforded zero deference and, in effect, expects the precise opposite– the agency must defer to the Court’s determinations! 

Fascinating.

The rest of the Court’s reasoning makes this new paradigm perfectly clear.

For instance, the Court reasoned previous case law had permitted parties to consent “to multiple, vaguely defined entities at one time” in analyzing the scope of “express consent.” That being the case the FCC’s determination that consumers could consent only to a single entity at a time must necessarily conflict with the statute.

Next, as to the “logicially and topically” related component the Court reasoned a consumer might “consent to calls about “loan consolidation” while shopping online for “auto loans.” Under case law all that is required is that the consumer “clearly and unmistakably” state, before receiving a robocall, that he is willing to receive telemarketing or advertising robocalls about loan consolidation. So any suggestion by the FCC that consent is invalid must necessarily fail– it is powerless to implement a restriction contrary to a court’s determination of the meaning of the statute.

My goodness.

In the end, the Court defines the scope of the TCPA’s express consent rule as follows: “As long as a consumer clearly and unmistakably states, before receiving the robocall, that he is willing to receive the robocall, he has given ‘prior express consent’ under the TCPA.”

That’s it.

And because the FCC’s one-to-one rule went further than this definition, it is dust in the wid.

So let’s walk through some take aways:

1. The FCC’s one-to-one rule is no more. The Eleventh Circuit has jurisdiction to strike down the ruling for the entire country under the Hobbs Act. No other court may enforce the rule. It is essentially dead and cannot be leveraged in any TCPA suit. That’s the good news.
2. The bad news: consent forms will face even greater scrutiny now than they have in the past. The Eleventh Circuit’s repeated focus on “clearly and unmistakably” stated consent may posed a massive detriment to typical lead gen forms that are often neither clear nor unmistakable. This seems to make the efforts of REACH–to set standards for what qualifies as “clear and unmistakable” in the industry– more important than ever. Remember, courts are already refusing to enforce forms fairly routinely. The one-to-one rule was actually set to help lead buyers to a certain degree because consumers who provided enhanced levels of consent were unlikely to sue. Lead buyers may still wish to require one-to-one consent to make sure they are getting real consumers who are providing real leads. There is still a ton of risk out there.
3. On that topic, it seems clear the FCC has the authority to define what “clear and unmistakable” means in this context. So perhaps we will one-day see additional regulation defining express consent. But I don’t expect that any time soon.
4. To be absolutely clear nothing has changed under the TCPA. Literally. Meaning everything that was illegal on Friday is still illegal today. And that means lead gen forms that do not provide “clearly and unmistakably” stated consent in a “clear and conspicuous” manner consistent with the FCC’s current express written consent requirements are still illegal. 
5. The incredibly restrictive approach adopted by the Eleventh Circuit in IMC is fascinating but is unlikely to catch on across the country. For instance, I do not expect a court in a suit between private parties to suddenly determine that “written” express consent is out the window because a consumer can “clearly and unmistakably” consent to receive robocalls orally. But hey, its Trump’s America now— so anything is possible. Again the IMC court’s ruling on one-to-one is effective across the country– but the restrictive analytic framework applied to assessing the legality of agency action is not.
6. The Court reserved the issue of whether the FCC’s dual treatment of consent–i.e. a higher standard for marketing versus informational messaging– is constitutional or not. Very interesting issue there– and a very strong argument can be made it is not. I suspect that will be the next battleground as industry pushes back on the TCPA’s express consent requirements.

Want to end with another note praising IMC here for their efforts. There was a little bit of Luck involved– literally– but they made the right moves to get the right result. While directionally one-to-one is good for the lead generation industry, the way the FCC framed its ruling was very very damaging for small business– it would have cost tens of thousands of jobs and hurt consumers.

Nobody should view this as a win for robocallers. It should be viewed as a win for common sense and–in a larger sense, a win for freedom against unwise government regulation. And for that reason in particular my hat is off to IMC. Nicely done folks.

Chat soon.