ADventures in Law

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We were all set to release our blog today announcing the long-awaited Federal Communications Commission’s (FCC) <a href="https://docs.fcc.gov/public/attachments/FCC-23-107A1.pdf" target="_blank" rel="noreferrer noopener">One-to-One Consent Rule</a> (Rule), which was issued <a href="https://docs.fcc.gov/public/attachments/FCC-23-107A1.pdf"></a>in December 2023 and set to take effect on Jan. 27. But alas, both the FCC and the Eleventh Circuit had other plans. First, on Jan. 24, the FCC <a href="https://docs.fcc.gov/public/attachments/DA-25-90A1.pdf" target="_blank" rel="noreferrer noopener">granted a 12-month stay</a> of the Rule given the pending court case; then, later that day, the Eleventh Circuit <a href="https://assets.law360news.com/2288000/2288768/24-10277_documents.pdf" target="_blank" rel="noreferrer noopener">vacated the Rule</a>.

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As a reminder, the FCC issued the Rule to address lead-generated communications, which <a href="https://docs.fcc.gov/public/attachments/DOC-408396A1.pdf" target="_blank" rel="noreferrer noopener">according to the FCC</a> “often rely on flimsy or non-existent claims of consent.” To close what the FCC referred to as the “lead generation loophole” the FCC proposed (1) amending the definition of prior express written consent, (2) requiring clear and conspicuous disclosures, and (3) requiring that messages be logically and topically related to the interaction that prompted the consent.

The 2023 Report and Order issuing the Rule (Order) amended the definition of prior written consent to mean “an agreement, in writing, that bears the signature of the person called or texted that clearly and conspicuously authorizes no more than one identified seller to deliver or cause to be delivered to the person called or texted…” The Rule also required that the consumer’s consent come after a clear and conspicuous disclosure that the individual will receive robocalls and/or robotexts from one seller. In this context, clear and conspicuous meant notice that would be “apparent to a reasonable consumer.” And finally, the Rule required that the marketing calls and texts be logically and topically related to the purpose for which the consent was gathered. Although the FCC declined to adopt a definition for “logically and topically related,” it did provide an example to illustrate this concept. The FCC explained that if a consumer gives consent to a website for a car loan comparison, messages sent about loan consolidation would not be logically and topically related.

In January 2024, the Insurance Marketing Coalition (IMC) challenged the Rule, arguing that the FCC exceeded its statutory authority in issuing the Order as the “prior express consent” restrictions conflict with the ordinary statutory meaning of “prior express consent” in the Telephone Consumer Protection Act. The Eleventh Circuit agreed with the IMC, finding that to give prior express consent to receive a marketing call or text, a consumer need only “clearly and unmistakably” state, before receiving the call or text, that they are willing to receive the call or text; one-to-one consent is not required. The Eleventh Circuit also found that the “logically and topically related” restriction was unlawful as the Order “impermissibly alters what it means to give ‘prior express consent.’” Because the Eleventh Circuit concluded that the FCC overstepped its statutory authority, it vacated the portion of the Order announcing the Rule.

The FCC has yet to respond to or issue a statement on the Eleventh Circuit’s decision, but we will monitor this space and be sure to keep you updated on any developments.

FCC One-to-One Consent Rule Vacated by the Eleventh Circuit