In a previous post, we discussed the oral arguments held on December 18, 2024, by the U.S. Court of Appeals for the Eleventh Circuit in the case of Insurance Marketing Coalition Limited (IMC) v. Federal Communications Commission (FCC). The case challenged the FCC’s December 2023 order under the Telephone Consumer Protection Act (TCPA), which aimed to reduce unwanted robocalls and texts by closing the “lead generator loophole” and requiring “one-to-one consent” for telemarketing communications. The new rule was set to take effect on January 27, 2025. However, during oral arguments, the Eleventh Circuit judges expressed skepticism about the FCC’s justification for its new rule.
The Decision
Last week, a unanimous three-judge panel of the Eleventh Circuit issued its decision vacating Part III.D of the FCC’s 2023 Order. Part III.D states that a consumer cannot consent to a telemarketing or advertising robocall unless: (1) the consumer consents to calls from only one entity at a time, and (2) consents only to calls whose subject matter is “logically and topically associated with the interaction that prompted the consent.” The court found that the FCC exceeded its statutory authority under the TCPA by imposing the new consent restrictions, which conflict with the ordinary statutory meaning of “prior express consent.”
Specifically, the court agreed with IMC that the FCC’s interpretation of “prior express consent” to require one-to-one consent was impermissible. The court emphasized that the TCPA requires only “prior express consent,” not “prior express consent” plus additional restrictions. The court noted that the FCC’s rule conflicted with the common law meaning of “prior express consent,” which does not necessitate individual consent for each caller. The court highlighted that the FCC’s rule effectively restricted consumers’ ability to consent to multiple entities, moving beyond mere implementation of the TCPA. “The questions we confront are straightforward: First, to give ‘prior express consent’ for telemarketing or advertising robocalls, must a consumer always consent to calls from only one entity at a time (i.e., give one-to-one consent)? And second, can a consumer give ‘prior express consent’ to receive telemarketing or advertising robocalls only when the consented-to calls are ‘logically and topically associated with the interaction that prompted the consent’? The answer to both questions is no, and the additional ‘prior express consent’ restrictions thus fail.”
The court also addressed the FCC’s argument that the new rule was necessary to prevent abuse and ensure meaningful consent. “Atextual good policy cannot overcome clear text. The TCPA’s text is clear: Callers must obtain ‘prior express consent’ — not ‘prior express consent’ plus.”
FCC Stay
Immediately on the heels of the decision, the FCC issued an order postponing the effective date for revisions to section 64.1200(f)(9) of the Commission’s rules by 12 months, to January 26, 2026, or until the date specified in a Public Notice following a decision from the court reviewing the challenge to the new rule, whichever is sooner. The FCC found that justice required postponement of the effective date pending judicial review to avoid imposing significant burdens on parties and to prevent texters and callers acting in good faith from facing private suits seeking statutory damages during the period of judicial review.
The FCC emphasized that previous requirements for prior express written consent under the TCPA will remain in effect during the postponement period.