Following a January 2025 decision by the Eleventh Circuit Court, the Federal Communications Commission (FCC or Commission) has repealed its one-to-one consent rule for prior express written consent, consistent with its ongoing Delete, Delete, Delete proceeding that is tasked with eliminating outdated and unnecessary regulations. The rule required that prior express written consent for telemarketing calls and texts made to wireless numbers, using an auto dialer or pre-recorded/artificial voice, could only be provided to the entity making the call or text, rather than to an affiliated or associated party. The rules also specifically required telemarketing texts and calls that result from a consumer’s prior express written consent to be “logically and topically associated” with the interaction prompting the consent. This rule was adopted to prohibit lead generation and comparison-shopping sites from sharing lead generation information from a long list of partners for consent purposes.
The Eleventh Circuit Court’s decision in Insurance Marketing Coalition v. FCC vacated the revised version of Section 64.1200(f)(9) of the FCC’s rules, which was adopted in the FCC’s 2023 Second Report and Order. You can read more about the FCC’s 2023 Second Report and Order in this previous blog post.
The Eleventh Circuit Court found that the rule was inconsistent with the TCPA and invalid under the Administrative Procedure Act. The Court ruled that both the one-to-one consent and the “logically and topically associated” requirements altered the ordinary meaning of prior express written consent beyond the FCC’s authority. The FCC has now deleted the vacated language and reinstated the prior version of the rules. The Commission emphasized that the revised rule was never implemented as the effective date was delayed until January 27, 2025, at which point the Eleventh Circuit Court had rendered its Insurance Marketing Coalition decision staying the effective date of the rule.
This action underscores the ongoing tension between regulatory efforts to protect consumers from unwanted communications and the operational realities faced by businesses that rely on third-party service providers or affiliates to engage with consumers. While the FCC continues to refine its TCPA framework, this latest development reflects the limits of its authority when its rules are challenged in court.
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