The landscape of prior express written consent under the Telephone Consumer Protection Act (TCPA) has undergone a significant shift over the past 13 months. In a December 2023 order, the Federal Communications Commission (FCC) introduced two key consent requirements to alter the TCPA, with these changes set to take effect on January 27, 2025. First, the proposed rule limited consent to a single identified seller, prohibiting the common practice of asking a consumer to provide a single form of consent to receive communications from multiple sellers. Second, the proposed rule required that calls be “logically and topically” associated with the original consent interaction. However, just a single business day before these new requirements were set to be enforced, the FCC postponed the effective date of the one-to-one consent, and a three-judge panel of circuit judges unanimously ruled that the FCC exceeded its statutory authority under the TCPA.

A Sudden Change in Course

On the afternoon of January 24, 2025, the FCC issued an order delaying the implementation of these new requirements to January 26, 2026, or until further notice following a ruling from the United States Court of Appeals for the Eleventh Circuit. The latter date referenced the fact that the Eleventh Circuit was in the process of reviewing a legal challenge to the new requirements at the time the postponement order was issued.

That decision from the Eleventh Circuit, though, arrived much sooner than expected. Just after the FCC’s order, the Eleventh Circuit issued its ruling in Insurance Marketing Coalition v. FCC, No. 24-10277, striking down both of the FCC’s proposed requirements. The court found that the new rules were inconsistent with the statutory definition of “prior express consent” under the TCPA. More specifically, the court held “the FCC exceeded its statutory authority under the TCPA because the 2023 Order’s ‘prior express consent’ restrictions impermissibly conflict with the ordinary statutory meaning of ‘prior express consent.’”

The critical takeaway from Insurance Marketing Coalition is that the TCPA’s “prior written consent” verbiage was irreconcilable with the FCC’s one-to-one consent and “logically and topically related” requirements. Under this ruling, businesses may continue to obtain consent for multiple sellers to call or text consumers through the use of a single consent form. The court clarified that “all consumers must do to give ‘prior express consent’ to receive a robocall is clearly and unmistakably state, before receiving a robocall, that they are willing to receive the robocall.” According to the ruling, the FCC’s rulemaking exceeded the statutory text and created duties that Congress did not establish.

The FCC could seek further review by the full Eleventh Circuit or appeal to the Supreme Court, but the agency’s decision to delay the effective date of the new requirements suggests it may abandon this regulatory effort. The ruling reinforces a broader judicial trend after the Supreme Court’s 2024 decision overturning Chevron deference – and curbing expansive regulatory interpretations.

What This Means for Businesses

With the Eleventh Circuit’s decision, the TCPA’s consent requirements revert to their previous state. Prior express written consent consists of an agreement in writing, signed by the recipient, that explicitly authorizes a seller to deliver, or cause to be delivered, advertisements or telemarketing messages via call or text message using an automatic telephone dialing system or artificial or prerecorded voice. The agreement must specify the authorized telephone number and cannot be a condition of purchasing goods or services.

This ruling is particularly impactful for businesses engaged in lead generation and comparison-shopping services. Companies may obtain consent that applies to multiple parties rather than being restricted to one-to-one consent. As a result, consent agreements may once again include language that covers the seller “and its affiliates” or “and its marketing partners” that hyperlinks to a list of relevant partners covered under the consent agreement.

A Costly Compliance Dilemma

Many businesses have spent the past year modifying their compliance processes, disclosures, and technology to prepare for the now-defunct one-to-one consent and logical-association requirements. These companies must now decide whether to revert to their previous consent framework or proceed with the newly developed compliance measures. The decision will depend on various factors, including the potential impact of the scrapped regulations on lead generation and conversion rates. In the comparison-shopping and lead generation sectors, businesses may be quick to abandon the stricter consent requirements. However, those companies that have already implemented changes to meet the one-to-one consent rule may be able to differentiate the leads they sell as the disclosure itself will include the ultimate seller purchasing the lead, which provides the caller with a documented record of consent in the event of future litigation.

What’s Next for TCPA Compliance?

An unresolved issue after the Eleventh Circuit’s ruling is whether additional restrictions on marketing calls — such as the requirement for prior express written consent rather than just prior express consent — could face similar legal challenges. Prior express consent can be established when a consumer voluntarily provides their phone number in a transaction-related interaction, whereas prior express written consent requires a separate signed agreement. If future litigation targets these distinctions, it is possible that the courts may further reshape the TCPA’s regulatory landscape.

The TCPA remains one of the most litigated consumer protection statutes, with statutory damages ranging from $500 to $1,500 per violation. This high-stakes enforcement environment has made compliance a major concern for businesses seeking to engage with consumers through telemarketing and automated calls. The Eleventh Circuit’s ruling provides a temporary reprieve for businesses, but ongoing legal battles could continue to influence the regulatory landscape.

For now, businesses must carefully consider their approach to consent management, balancing compliance risks with operational efficiency. Whether this ruling marks the end of the FCC’s push for stricter TCPA consent requirements remains to be seen.