In line with the Federal Communications Commission’s (“FCC”) initiative to eliminate unnecessary rules, the FCC recently rendered its one-to-one Telephone Consumer Protection Act (“TCPA”) consent rule (“TCPA Rule”) dead by “deleting” it from its regulations. Earlier this year, readers may recall that a federal court ordered that the TCPA Rule be vacated. Now, the FCC has officially removed the one-to-one TCPA consent rule from its regulations. Below, we discuss the one-to-one TCPA consent rule’s history and what its removal from the FCC’s regulations means.
How Did The TCPA Rule Get to Where It Is Today?
Pursuant to its authority under the TCPA, the FCC formally adopted, among other things, the TCPA Rule on December 13, 2023. The 1-to-1 TCPA consent rule dramatically altered the definition of “prior express written consent” for purposes of placing automated calls/texts to consumers under the TCPA. The TCPA Rule would have required companies to obtain individualized consent from consumers to receive calls/texts. Stated differently, companies would have been unable (through the use of a long paragraph of sellers or through a “marketing partner” hyperlink) to obtain consent for multiple sellers to deliver automated calls/texts. In addition, the 1-to-1 TCPA consent rule would have required calls/texts to be “logically and topically related” to the original provision of consent. As an example, the FCC said that consent to receive calls/texts in connection with a car loan was insufficient consent to receive calls/texts about loan consolidation.
Although the TCPA Rule was adopted on December 13, 2023, the FCC postponed its effective date until January 27, 2025. Mere days before the TCPA Rule was slated to go into effect, the Eleventh Circuit Court of Appeals vacated it, holding that the FCC exceeded its statutory authority by implementing the rule. In Ins. Mktg. Coalition Ltd. [“IMC”] v. FCC, IMC argued that the FCC’s implementation of the one-to-one TCPA consent rule exceeded its statutory authority because it conflicted with the ordinary statutory meaning of “prior express consent.” Generally, the TCPA prohibits robocalls without the called party’s “prior express consent.” To determine whether the FCC exceeded its statutory authority by implementing the 1-to-1 consent rule, the Court had to determine whether “prior express consent” requires: (1) consumers always consenting to calls/texts one entity at a time; and (2) calls to be logically and topically associated with the interaction that prompted the consent.
Addressing the first question, the Court determined that “prior express consent” only requires consumers to clearly and unmistakably consent to receive automated calls. Because the one-to-one TCPA consent rule altered the ordinary meaning of “prior express consent,” the Court ruled that the TCPA Rule exceeded the scope of the FCC’s authority to “implement” the TCPA. Turning to the second question, the Court held that the logically and topically related requirement similarly conflicts with the meaning of “prior express consent.” As a result, the Court vacated the one-to-one TCPA consent rule.
The TCPA Rule Is Officially Dead
Rather than revise the one-to-one TCPA consent rule, the FCC has decided to officially purge the rule from its regulations. This means that the TCPA Rule is dead unless Congress amends the TCPA’s definition of “prior express consent” to include one-to-one consent and logically and topically related requirements. Receipt of unwanted calls/texts are among the most common consumer complaints that the FCC receives, and it is highly likely that the FCC will continue to issue TCPA rules and interpretations to address these complaints. However, given the string of recent decisions undermining agency actions, present and future FCC TCPA rulemakings and interpretations are certain to be challenged.
Because the TCPA remains lucrative for the plaintiffs’ bar, it is imperative for telemarketing companies to maintain TCPA compliance at all times. Although the one-to-one consent rule is defunct, now is a good time for companies to take a fresh look at their telemarketing practices and procedures.
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