Eleventh hour reprieve: Eleventh Circuit vacates FCC 1:1 consent rule on eve of enforcement date

The FCC’s Order

The TCPA is a strict liability law that allows for recovery of statutory damages of $500 per violation ($1500 if the violation is reckless or intentional). Plaintiffs’ lawyers file thousands of putative class action complaints alleging violations of the TCPA every year. It is no surprise that companies expend significant resources to comply with the law.

The TCPA requires companies to obtain “prior express consent” before calling and texting consumers. Pursuant to a prior FCC order from 2012, that consent must be in writing before a company can place marketing calls or texts using an automated telephone dialing system (ATDS) or artificial or prerecorded voice technology. As covered in a prior alert, in its December 2023 Order, the FCC added two additional requirements to “prior express consent” to call or text using an ATDS or prerecorded voice messages. 

First, the Order required “1:1 consent,” which meant that one consumer can only consent to receive calls or texts from one telemarketer pursuant to a specific consent agreement. This 1:1 consent rule was intended to close what the FCC termed “the lead generator loophole,” whereby lead generators obtained consumer consent to contact multiple partner companies through a single consent agreement. 

Second, the Order required the consent to be “logically and topically associated” with the “interaction that prompted the consent.” To illustrate this principle, the FCC gave an example: “a consumer giving consent on a car loan comparison shopping website does not consent to get robotexts or robocalls about loan consolidation.”

Insurance Marketing Coalition Ltd v. FCC

Insurance Marketing Coalition Limited (IMC), a trade association whose members would be impacted by the Rule, challenged the lawfulness of both requirements in Insurance Marketing Coalition Ltd. v. FCC, No. 24-10277, 2025 WL 289152 (11th Cir. Jan. 24, 2025). IMC argued that the FCC’s authority to define “prior express consent” is limited by the phrase’s ordinary meaning. According to IMC, the “1:1 consent rule” and the “logically and topically associated rule” conflicted with the ordinary meaning of “prior express consent” and therefore should be vacated.

The Eleventh Circuit agreed. 

In vacating the Rule, the Appeals Court emphasized that “the TCPA requires only ‘prior express consent’—not ‘prior express consent’ plus.” The court held that “all consumers must do to give ‘prior express consent’ to receive a robocall is clearly and unmistakably state, before receiving a robocall, that they are willing to receive the robocall.” 

Both the “1:1 consent rule” and the “logically and topically associated rule” conflicted with this ordinary meaning. The court held that consumers could clearly and unmistakably state their willingness to receive calls from multiple marketers at once. Similarly, they could clearly and unmistakably state their willingness to receive calls that were not “logically and topically associated” with the website where consent was given. 

The FCC argued that such consents could not be “presumed” to be “voluntary” or “willing.” The court rejected this argument, noting the Order placed a blanket restriction on such consents. And the FCC’s argument “says nothing about whether consumers can consent” in such ways. Because the Order fails to account for the fact that such consents can sometimes be voluntary and willing, it conflicted with the TCPA.

Conclusion

While this eleventh hour reprieve does not save companies the time and costs that have already been expended in putting into place procedures to meet the 1:1 consent rule, businesses do not have to comply with the rule and will no longer face liability under the TCPA for potential violations of the Rule. 

It is also worth noting that this decision comes prior to any specific direction from the new Trump Administration, and prior to the Supreme Court’s ruling in McLaughlin Chiropractic Associates Inc. v. McKesson Corporation, discussed previously, which poses the question of whether federal district courts, under the Hobbs Act, must adhere to the rulings of the Federal Communications Commission (FCC) at all. The FCC is now under Republican control, so we do not expect the current slate of Commissioners to attempt to resurrect these or similar requirements in the coming years. Finally, the Eleventh Circuit’s decision may also be the first in a series of pro-business decisions we will see in the coming years as the FCC’s regulatory authority becomes more circumscribed.  

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