The 1 to 1 Consent Rule Is No More

On Friday, Jan. 24th, 2025, the United States Court of Appeals for the Eleventh Circuit (“11th Circuit”) issued an opinion vacating the Federal Communications Commission’s (FCC’s) “1 to 1 Consent Rule.”

The 11th Circuit’s opinion came close on the heels of an FCC Order issued that same day postponing the Jan. 27 effective date for the 1-to-1 Consent Rule.

These two actions, which took place only three days before the effective date of the 1-to-1 Consent Rule, were welcome news for lead generators, comparison shopping sites, and other marketers.

Background

As we described previously, new FCC rules were scheduled to take effect on Jan. 27th that would have a significant impact on marketers. In 2023, the FCC adopted new rules  (the “2023 Order”) designed to address alleged abuses by lead generators under the Telephone Consumer Protection Act of 1991 (TCPA). Under the TCPA, consumers generally are required to provide their prior express written consent before they receive an automated call or text to a mobile number. The FCC rule was intended to close what the agency described as a “lead generation loophole,” which included the resale of consumer data and “harvesting” or sharing of a consumer’s TCPA consent with hundreds of sellers unbeknownst to the consumer. The rule, however, modified the definition of “prior express written consent” for all TCPA purposes and would have had implications beyond lead generation and lead generation situations.

We highlighted the possibility of FCC action and of a decision in the Insurance Marketing Coalition appeal pending before the 11th Circuit as developments to watch before the rule took effect. On Friday, both the FCC and the court significantly upended the implementation of the 1-to-1 Consent Rule.

The FCC Order and the 11th Circuit Opinion

Near the end of the last business day before the 1-to-1 Consent Rule would take effect, the FCC decided to postpone the effective date of the 1-to-1 Consent Rule in order to “avoid imposing new burdens on parties while the court is adjudicating IMC’s challenge to the rule …”  The FCC postponed the effective date by one year but allowed for the possibility of an earlier effective date after the court ruled.

Just hours later, the 11th Circuit vacated the 1-to-1 Consent Rule, ruling that the FCC exceeded its statutory authority under the TCPA because the content restrictions in the 2023 Order “impermissibly conflict with the ordinary statutory meaning of ‘prior express consent.’”

In particular, the court found that the 2023 Order’s 1) one-to-one consent restriction and 2) “logically and topically related” restriction conflict with the “ordinary statutory meaning” of “prior express consent” found in the TCPA. Because the FCC rule limited the ability of consumers to “clearly and conspicuously” express consent to calls, the court vacated the rule. It remanded the matter to the FCC for further consideration in light of the opinion.

Takeways for Marketers

The 11th Circuit vacated the 1-to-1 Consent Rule, effectively ending the possibility of changes to the consent marketers need to reach customers and prospective customers.  While the FCC now has the ability to revisit the rule, given the change in leadership at the FCC, it is unlikely the FCC will seek to implement similar restrictions any time soon.  Moreover, the court’s view of the meaning of “prior express consent” under the TCPA appears to limit the FCC’s options significantly.  We expect the FCC to address the topic again, as combatting unwanted and illegal calls/texts has been a bipartisan concern at the FCC, but the court’s opinion likely will mean that reexamining the issue is not high on its current priority list.

In the meantime, marketers should continue to ensure that they obtain “prior express consent” from consumers before placing automated calls/texts or sending prerecorded messages to mobile phones.  Marketers should ensure that consent is clear and conspicuous, that it is proximate to the solicitation for consent, that it is in writing when required, and that the appropriate disclosures are provided.  Marketers should also ensure compliance with the myriad of related industry guidelines and related federal and state statutes governing do-not-call, reassigned numbers and marketing messages.  Further, FCC rules require marketers to allow consumers to revoke consent through any reasonable means (with rule changes in this area taking effect in April).

Please feel free to contact us or your regular Nelson Mullins contact for further information.