/>iThe first months of 2025 have brought a number of notable developments in TCPA litigation and compliance, kicking off with the eleventh-hour announcement by the FCC on January 24 that it would postpone the effective date of the One-to-One Consent Rule by one year.
In the following months, including in recent weeks, there has been no shortage of litigation and agency activity impacting how the TCPA will be applied to telemarketing texts and calls throughout the United States.
Consumers and Small Businesses ask 11th Circuit to Revive One-to-One Consent Rule, but FCC Declines to Defend It
On the heels of the recent 11th Circuit decision vacating the TCPA’s One-to-One Consent Rule — which would have heightened the standard for prior express written consent for telemarketing to consumers and business owners — consumer and privacy groups mobilized to challenge the ruling and resurrect the rule.
The intervenors are the National Consumers League and a coalition of small business owners, who in February 2025, sought the 11th Circuit’s leave to intervene, and in March 2025 filed their proposed petition for a rehearing en banc. We previously analyzed the 11th Circuit’s decision in this January 2025 alert, which further details the court’s decision that came on the eve of the Rule’s implementation.
The FCC, arguing in its April 2025 opposition that the intervenors’ motion was untimely, urged the court to defer to the agency’s decision not to defend the rule:
“The government has decided not to seek further review of this Court’s panel decision vacating an FCC rule. Allowing the proposed intervenors to become parties at this late stage, only to continue litigation that the government has decided no longer to pursue, would undermine the government’s prerogative to direct the course of this case.”
The intervenors, on the other hand, argued that the court failed to use the correct standard for reviewing agency decisions when it vacated the One-to-One Consent Rule. Citing the Supreme Court’s 2024 decision in Loper Bright Enterprises v. Raimondo, and decisions by the 6th, 9th, and D.C. Circuit Courts of Appeal interpreting that holding, the intervenors argue that the 11th Circuit was wrong to disregard FCC’s statutory authority, judgment, and experience in creating the One-to-One Consent Rule.
The intervenor petition claims that the 11th Circuit should have provided the FCC with appropriate deference under the 1944 Supreme Court decision Skidmore v. Swift & Co., which Loper endorsed, particularly where the FCC had expertise and thorough analysis.
The 11th Circuit may direct a number of different outcomes in resolving the motion to intervene and petition for review, including granting an en banc rehearing. The case raises critical questions following the Supreme Court’s Loper decision, including whether there are differences in the degree of deference a federal court should grant to agency decisions both in rulemaking and abandoning previously promulgated rules, and whether there should be a change in the degree of deference to both decisions.
FCC Delays Another TCPA Rule During its One-to-One Consent Legal Battle
In addition, the FCC this month has issued an order extending by one year the effective date of certain parts of the TCPA Consent Revocation Rule. Originally scheduled to take effect on April 11, 2025, the delayed portion of the rule mandates that if someone withdraws consent to receive calls or text messages, those opt-out requests apply to all future communications from that caller, even on unrelated subjects.
The FCC granted the extension so those most affected by the Rule — particularly financial institutions and health care organizations — have ample time to update their communications systems in order to comply without “undue hardship.”
While the Consent Revocation Rule has not yet been the subject of litigation in the same vein as the One-to-One Consent Rule, there is the potential for legal challenge before the new effective date comes to pass.
