On January 24, 2025, the Eleventh Circuit made a landmark decision by vacating the FCC’s “one-to-one” consent requirement for marketing calls and texts under the Telephone Consumer Protection Act (TCPA). This ruling has significant implications for businesses and marketers, as it reaffirms the traditional interpretation of “prior express consent” under the law.
Some Key Points of the Ruling:
- Judicial Overreach:
- The court determined that the FCC overstepped its statutory authority by imposing restrictions that deviated from the TCPA’s plain language.
- The ruling emphasized that consumers only need to provide a clear and unmistakable consent to receive robocalls, without being limited to a single seller.
- Rejection of the One-to-One Consent Rule:
- The rule, aimed at preventing the “lead generator loophole” (where a consumer’s single consent form could authorize multiple sellers), was found to conflict with common law principles underlying the TCPA.
- The decision underscores that a consumer’s explicit willingness to receive calls is sufficient, regardless of how many entities might later contact them.
- Critique of the FCC’s Policy Rationale:
- The court dismissed the FCC’s public policy arguments as a “Hail Mary” attempt, stating that good policy cannot override clear statutory language.
- The court noted that even the FCC’s own submissions admitted consumers could consent to multiple intermediaries, contradicting the one-to-one requirement.
- Immediate Impact on Businesses:
- The vacated rule was scheduled to take effect on January 27, 2025. With its removal, businesses must revert to the previous requirements for prior express written consent.
- Companies that had already adapted their strategies and contractual commitments to meet the one-to-one standard will need to re-evaluate their compliance measures.
- Next Steps and Broader Context:
- The case has been remanded back to the FCC for further proceedings, and the agency is expected to address this decision promptly.
- Other components of the FCC’s TCPA updates—such as text blocking requirements and protections extended via the National DNC Registry—remain unaffected.
- Additional rule changes, like those concerning the revocation of consent set to take effect on April 11, 2025, are still pending and warrant close attention.
What Businesses Need to Know:
- Reassess Compliance Strategies:
Evaluate current marketing practices and contracts to ensure they align with the original TCPA standards, rather than the vacated one-to-one rule. - Monitor FCC Developments:
Stay informed on further FCC actions and clarifications regarding TCPA rules, especially those impacting consent revocation and other pending changes. - Consult Legal Expertise:
Given the complexities and potential contractual implications, businesses should consider consulting with legal professionals experienced in telecommunications law to navigate these adjustments effectively.
This ruling not only reaffirms the traditional understanding of consumer consent under the TCPA but also serves as a reminder of the importance of aligning regulatory interpretations with statutory language. Businesses should use this opportunity to review and update their marketing strategies accordingly.
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