Federal Communications Commission’s One-to-One Consent Rule Under Telephone Consumer Protection Act Vacated Day Before Rule Set to Take Place
On Monday, January 27, 2025, the One-to-One Consent Rule (“the Rule”) promulgated by the Federal Communications Commission (the “Commission”) a year ago, on December 18, 2023, was set to go into effect.[1] Under this Rule, a consumer could not consent to a telemarketing or advertising robocall unless (1) he consents to calls from only one seller at a time, (2) he receives a clear and conspicuous disclosure that he will receive telemarketing calls or texts using an automatic telephone dialing system or an artificial or prerecorded voice, and (3) he consents only to calls whose subject matter is “logically and topically associated with the interaction that prompted the consent.”[2] The Commission viewed the Rule primarily as a way to prevent lead generators from using single consumer consent on the comparison shopping websites that often are the source of lead generation.[3] But the Rule was not limited to lead generators. Rather, it applied to all entities utilizing — themselves or through their vendors, affiliates, or other third parties — telemarketing calls or texts using regulated technology. The Rule thus required these businesses to overhaul their consent collection flows, revise contracts with vendors and other third parties, and otherwise reassess their business operations. The Rule also portended a substantial increase in Telephone Consumer Protection Act (TCPA) litigation, particularly as the key terms in the Rule — such as what it means to be “logically and topically associated with the interaction that prompted the consent” — were undefined.
Businesses subject to the One-to-One Consent Rule got their lucky break on Friday, January 24, 2025, the last business day before the Rule was set to go in effect. Initially, the Commission, acting sua sponte, issued an order postponing the effective date of the One-to-One Consent Rule by 12 months — to January 26, 2026 — or until the date specified in a public notice after the U.S. Court of Appeals for the Eleventh Circuit issues a decision on the petition filed by the Insurance Marketing Coalition (IMC) challenging the Rule (whichever is sooner).[4] The Commission found that, given the advanced stage of the judicial proceedings in the Eleventh Circuit, the litigation risks presented by the Rule for texters and callers acting in good faith, and concerns about the industry’s readiness for immediate compliance with the Rule, it was in the interest of justice to postpone the effective date of the rule.[5]
The Eleventh Circuit did not leave folks waiting for long. That same Friday afternoon, the court issued an opinion finding that the Commission exceeded its statutory authority under the TCPA because the new consent restrictions in the Rule “impermissibly conflict with the ordinary statutory meaning of ‘prior express consent.’”[6] In particular, the Eleventh Circuit noted that the term “prior express consent” as used in the TCPA statute only requires a consumer to “clearly and unmistakably” state that they are willing to receive the robocall — and says nothing about requiring one-to-one consent.[7] Nor does it say anything about the consumer’s consent being limited to calls that are “logically and topically associated with the interaction that prompted the consent.”[8] Thus, the requirements for a consumer to separately and independently consent to receive robocalls from each individual seller and for the robocalls to be “logically and topically associated with the interaction that prompted the consent” were contrary to the plain meaning of the statute; thus, they were in excess of the Commission’s statutory authority to implement the TCPA.[9] What is more, rather than remand the matter back to the agency, the Court altogether vacated the One-to-One Consent Rule.[10]
As a result of these two actions, the Commission is back to square one and will need to decide whether to pursue any further action to revive the One-to-One Consent Rule as well as whether it can be done in light of the Eleventh Circuit’s holding. More importantly, the business community does not need to worry about compliance with the Rule and can continue operating under the status quo, which still requires obtaining express written consent for marketing outreaches using regulated technology.
1 Second Report and Order, In re Matter of Targeting and Eliminating Unlawful Text Messages, Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, Advanced Methods to Target and Eliminate Unlawful Robocalls, 38 FCC Rcd. 12247, 12258-69 (2023) (the “2023 Order”). The 2023 Order would, in relevant part, revise 47 C.F.R. § 64.1200(f)(9).
4 FCC Order dated Jan. 24, 2025, In re Matter of Targeting and Eliminating Unlawful Text Messages, Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, Advanced Methods to Target and Eliminate Unlawful Robocalls,issued by Eduard Bartholme III, Acting Chief, Consumer and Government Affairs Bureau.
6 Ins. Marketing Coalition Limited v. FCC, Case No. 24-10277 (Jan. 24, 2025), Slip Op. at 4.
