On Friday, January 24, 2025, just one business day before it was to take effect on January 27, the Eleventh Circuit vacated the Federal Communications Commission’s (FCC) One-to-One Consent Rule that was adopted as an amendment to the Telephone Consumer Protection Act (TCPA) on December 13, 2023. The decision came on the immediate heels of the FCC’s announcement, also on January 24, that it would postpone the effective date of the One-to-One Consent Rule by one year.

One-to-One Consent Rule: Heightened Standard for Prior Express Consent

The TCPA requires businesses to obtain prior express written consent from recipients before initiating any telemarketing or advertising calls or text messages using an “autodialer” or an artificial or prerecorded voice. The One-to-One Consent Rule was particularly notable, and created a lot of uncertainty, because it heightened these consent requirements by requiring:

(1) Express, individual consent for each “seller” (the ultimate marketer), meaning a single consent obtained by an aggregator or lead generator on behalf of multiple sellers would be insufficient.

(2) The content of telemarketing calls and text messages to be “logically and topically” related to and consistent with the interaction that prompted the consent. “Logically and topically” was not defined by the FCC in its rulemaking, creating significant uncertainty in the lead-up to implementation.

For our prior guidance concerning the One-to-One Consent Rule, see our prior client alert on its adoption.

Eleventh Circuit Applied Post-Chevron Scrutiny, Finding FCC Exceeded its Authority

This eleventh-hour ruling was the culmination of litigation in Insurance Marketing Coalition Limited v. FCC, in which oral argument was heard on December 18, 2024. A three-judge panel of circuit judges unanimously ruled that the FCC exceeded its statutory authority under the TCPA because the One-to-One Consent Rule’s new consent restrictions impermissibly conflicted with the ordinary statutory meaning of “prior express consent.”

Applying the Supreme Court’s 2024 ruling in Loper Bright Enterprises v. Raimondo, which overruled the 40-year-old Chevron defense doctrine, the court noted that, when reviewing administrative action, “the reviewing court shall decide all relevant questions of law.” The court therefore concluded it was not bound by the FCC’s 2022 Urth Access decision when it came to determining what it means to give “prior express consent” under the TCPA.

Under the Eleventh Circuit’s analysis, the “one-to-one consent restriction attempts to alter what we have said is the ordinary common law meaning of ‘prior express consent,’” thus exceeding the FCC’s statutory authority to implement the TCPA.

Although the TCPA did not define “prior express consent,” the court explained that its “precedent has filled the void,” and that “prior express consent” means consent that is “clearly and unmistakably granted” before the call (or text).

Prior express consent ordinarily allowed consent to future telemarketing or advertising calls or texts from multiple entities, and did not statutorily require independent and separate consents to receive calls from each individual caller. The court also reasoned that the “logically-and-topically” requirement enhanced and exceeded the meaning of “prior express consent” already included in the statutory language of the TCPA, altering “the specific choices Congress made.”

Uncertain Future of TCPA Consent Challenges

The FCC may directly address the Eleventh Circuit ruling, with administrative changes likely impacting the direction of the Commission and its priorities. Brendan Carr, the senior Republican commissioner on the FCC, who previously served as the FCC’s general counsel, is the new FCC Chairman. (Carr did not require Senate confirmation to assume his role as chair because he was confirmed when he became an FCC commissioner.) Notably, Chairman Carr voted in favor of the One-to-One Consent Rule in 2023 but was the only commissioner who did not provide an accompanying statement.

The One-to-One Consent Rule was intended to eliminate the practice of lead generators obtaining consent on behalf of numerous parties at once. The FCC could revisit the issue of TCPA consent in lead generation and issue a new rule on its own initiative while the original litigation has been remanded for further proceedings.

In the interim, based on the Eleventh Circuit’s focus on “clearly and unmistakably granted” consent, we expect that plaintiffs will focus their challenges to consent based on this framework. But, in any case, businesses should continue to closely evaluate how they obtain leads to ensure that they have obtained appropriate consents, i.e., consents that were stated clearly and unmistakably in a manner consistent with the FCC’s current express written consent requirements.