As our firm previously reported, on January 27, 2025, two new Federal Communications Commission (FCC, Commission) requirements for prior express written consent under the Telephone Consumer Protection Act (TCPA) set forth in the Second Report and Order, Second Notice of Proposed Rulemaking, and Waiver Order (Second R&O) were scheduled to take effect. These requirements would have:
- Limited consent to “no more than one identified seller” (“one-to-one consent”), and
- Restricted calls to those “logically and topically” related to the interaction that prompted the consent.
FCC’s Postponement Order and Eleventh Circuit Ruling
Just days before the implementation date, two crucial events occurred:
- On January 24, 2025, the FCC issued an order postponing the new requirements until January 26, 2026, or until the date specified in a Public Notice following a decision from the United States Court of Appeals for the Eleventh Circuit, which was “reviewing a challenge to the new rule.”
- Shortly thereafter, the Eleventh Circuit issued its decision in Insurance Marketing Coalition v. FCC (No. 24-10277), striking down the “one-to-one consent” and “logically and topically related” rules.
The court found that the new requirements were inconsistent with the statutory meaning of “prior express consent” under the TCPA. It concluded that the FCC had exceeded its authority by imposing regulations that contradicted the statute’s text.
Among other sources of law, the Eleventh Circuit cited the Supreme Court’s ruling in Loper Bright Enterprises v. Raimondo. As we previously advised, this ruling overturned the longstanding “Chevron deference” doctrine, meaning that federal courts can no longer automatically defer to an agency’s interpretation of a law, even if the law is ambiguous, and must instead exercise their own independent judgment when reviewing agency actions. This significantly shifts power in interpreting statutes away from administrative agencies and towards the judiciary.
The Eleventh Circuit’s decision to vacate the FCC’s “one-to-one consent” and “logically and topically related” rules continues a trend of federal appeals courts scrutinizing and often vacating impactful federal agency rules.
National Consumers League Intervention
Given the one-to-one consent rule was adopted by the democrat-majority FCC along the party lines, it is unlikely the FCC will request a rehearing of the Insurance Marketing Coalition v. FCC case.
In line with this, on February 19, 2025, the National Consumers League (NCL) and four individual small business owners filed a motion to intervene in the Insurance Marketing Coalition v. FCC case. They seek to intervene to defend the “one-to-one consent” rule, which they believe will significantly reduce unwanted telemarketing calls and protect consumers and small businesses from the associated harms. The movants seek an en banc rehearing of the panel’s decision. We will continue monitoring for developments in this case.
Rules That Remain Effective
Organizations need to be aware that, despite the Eleventh Circuit’s decision to vacate the “one-to-one consent” rule, other rules set forth in the Second R&O have already gone into effect:
- Terminating mobile providers must block all text messages from a particular number following notification from the Commission of illegal texts originating from that number.
- Texters must have the consumer’s prior express invitation or permission before sending a marketing text to a wireless number in the Do Not Call (“DNC”) Registry.
Upcoming Compliance Date for New Revocation of Consent Rules
As we advised our readers earlier, rules regarding robotext consent revocation are still set to go into effect on April 11, 2025.
These rules codify and expand upon previous rulings, allowing consumers to revoke consent through any reasonable method. Acceptable methods include interacting with automated systems, replying to texts, using designated forms or phone numbers, and other means that clearly express a desire to opt out.
Under these rules, robocallers and robotexters cannot designate an exclusive revocation method and must honor opt-out requests within 10 business days. For robotexts where replies are not enabled, clear disclosure and alternative opt-out methods must be provided. Additionally, package delivery companies must offer recipients the ability to opt out of delivery notifications and honor such requests within six business days.
Conclusion
The TCPA landscape continues to evolve rapidly. The Eleventh Circuit’s decision to strike down the FCC’s “one-to-one consent” and “logically and topically related” rules marks a pivotal shift in TCPA interpretation, aligning with the broader trend of increased judicial scrutiny of agency actions following the Loper Bright Enterprises v. Raimondo decision.
While the FCC is unlikely to seek a rehearing, the intervention attempt by the National Consumers League and small business owners introduces a new dynamic to the case, potentially leading to an en banc review. Organizations should closely monitor these developments, as they could significantly impact future TCPA compliance strategies.
In the meantime, businesses must remain vigilant about existing and new TCPA rules, particularly those related to text message blocking, consent requirements for marketing texts to numbers on the Do Not Call Registry and the pending robotext consent revocation rules set to become effective April 11, 2025.
As the regulatory landscape continues to shift, organizations should maintain robust compliance programs, stay informed about legal developments, and be prepared to adjust their practices accordingly to mitigate TCPA-related risks.
The CommLaw Group Can Help!
Given the complexity and evolving nature of the FCC’s rules, regulations and industry policies & procedures around Robocall/Robotext Mitigation and Compliance issues (e.g., STIR/SHAKEN, TRACED Act, FCC & FTC Rules & Regulations, US Telecom Industry group, ATIS, NECA, VoIP Numbering Waivers, Know Your Upstream Provider and the private sector ecosystem), as well as the increased risk of business disputes, consumer protection enforcement by state attorneys general, and even civil litigation, and anticipating the potential torrent of client questions and concerns, The CommLaw Group formed a “Robocall Mitigation Response Team” to help clients (old and new) tackle their unique responsibilities.
CONTACT US NOW, WE ARE STANDING BY TO GUIDE YOUR COMPANY’S COMPLIANCE EFFORTS
Jonathan S. Marashlian – Tel: 703-714-1313 / E-mail: jsm@CommLawGroup.com
Michael Donahue — Tel: 703-714-1319 / E-mail: mpd@CommLawGroup.com
Susan Duarte – Tel: 703-714-1318 / E-mail: sfd@commlawgroup.com
Rob Jackson – Tel: 703-714-1316 / E-mail: rhj@CommLawGroup.com
Ron Quirk – Tel: 703-714-1305 / E-mail: req@CommLawGroup.com
Diana James – Tel: 703-663-6757 / E-mail: daj@CommLawGroup.com
