Major TCPA Development: Eleventh Circuit Strikes Down FCC’s One-to-One Consent Rule

On January 24, 2025, the Eleventh Circuit Court of Appeals issued a pivotal ruling under the Telephone Consumer Protection Act (TCPA). The court struck down the Federal Communication Commission’s (FCC) newly implemented one-to-one express consent rule, dealing a significant blow to the FCC’s recent attempt to regulate telemarketing practices.

What Was the One-to-One Consent Rule?

The FCC’s one-to-one rule would have required consumers to explicitly name the entity to which they were providing consent when filling out online webforms. Additionally, the rule mandated that consent must be “logically and topically” tied to the transaction that prompted it. The intent behind the rule was to reduce unwanted robocalls caused by the resale of consumer data, which is often buried in fine print on websites.

The Eleventh Circuit’s Ruling

In Insurance Marketing Coalition v. FCC, the Eleventh Circuit found that the FCC exceeded its authority by imposing restrictions that went beyond the TCPA’s statutory language. Specifically, the court held:

1. Limited Agency Authority: The FCC has the power to implement the TCPA, but only within the confines of the law. It cannot redefine or add requirements that conflict with the statutory meaning of “prior express consent.”
2. Definition of Express Consent: The court emphasized that under the TCPA, “express consent” simply means consent that is clearly and unmistakably granted, whether orally or in writing. The FCC’s attempt to add additional requirements—like limiting consent to a single entity or tying it to a specific topic—was deemed unlawful.
3. Judicial vs. Agency Authority: The ruling reflected a broader shift in legal reasoning, with courts now taking a more restrictive view of agency power. The Eleventh Circuit effectively required the FCC to defer to judicial interpretations of the TCPA, rather than defining rules independently.

Key Implications of the Decision

1. The One-to-One Rule is Dead: The Eleventh Circuit’s decision invalidates the one-to-one consent rule nationwide under the Hobbs Act. No court can enforce the rule, and it cannot be leveraged in TCPA lawsuits.
2. Stricter Scrutiny on Consent Forms: While the FCC’s rule is overturned, the court’s emphasis on “clearly and unmistakably” stated consent raises the bar for compliance. Generic or vague consent forms used in lead generation may face legal challenges.
3. Potential Future Regulation: While the FCC retains authority to define what constitutes “clear and unmistakable” consent, any future regulations must align with the court’s interpretation of the TCPA.
4. No Changes to Existing TCPA Rules: The ruling does not alter the fundamental requirements of the TCPA. Businesses must still ensure that consent is clear, conspicuous, and properly documented to avoid liability.
5. Broader Legal Trends: The decision reflects a trend toward limiting agency power. Courts are increasingly scrutinizing regulatory overreach, which may impact future rulings on telemarketing and data privacy.

A Win for Common Sense?

The Eleventh Circuit’s decision is seen as a victory for small businesses and the lead generation industry, which argued that the one-to-one rule would have imposed excessive burdens and cost jobs. However, it is not a win for robocallers. Companies must still adhere to stringent consent requirements to remain compliant.

As the legal landscape evolves, businesses should closely monitor developments and ensure their practices align with the TCPA’s requirements. For now, the Eleventh Circuit has reaffirmed the importance of clear and unmistakable consent—without unnecessary regulatory overreach.

Read more about the ruling here.