The Federal Communication Commission (FCC) has finalized its rule under the Telephone Consumer Protection Act (TCPA), addressing prior express consent requirements for sellers to send advertisements and telemarketing notices using an automatic telephone dialing system (ATDS) or artificial/prerecorded voice. Notably, the one-to-one requirement has been removed.
In 2023, the FCC issued a rule requiring one-to-one consent for lead generators, i.e. if a consumer signed up to be contacted by phone or text the consent had to be for one specific seller and the contact had to be “logically and topically” related to the interaction leading to the consent. This rule prohibited a disclosure with a hyperlink to a list of hundreds of network partners that might contact the consumer. As discussed here, in January 2025, right before the rule went into effect, the U.S. Court of Appeals for the Eleventh Circuit found that the FCC exceeded the scope of its authority because its rule contradicted the ordinary statutory meaning of the TCPA’s prior express consent language and vacated the rule.
In April 2025, the FCC stated it would not challenge the Eleventh Circuit’s ruling. The newly issued final rule defines prior express consent under 47 CFR § 64.1200(f) as:
(9) The term prior express written consent means an agreement, in writing, bearing the signature of the person called that clearly authorizes the seller to deliver or cause to be delivered to the person called advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice, and the telephone number to which the signatory authorizes such advertisements or telemarketing messages to be delivered.
(i) The written agreement shall include a clear and conspicuous disclosure informing the person signing that:
(A) By executing the agreement, such person authorizes the seller to deliver or cause to be delivered to the signatory telemarketing calls using an automatic telephone daily system or an artificial or prerecorded voice; and
(B) The person is not required to sign the agreement (directly or indirectly), or agree to enter into such an agreement as a condition of purchasing any property, goods, or services.
(ii) The term “signature” shall include an electronic or digital form of signature, to the extent that such form of signature is recognized as a valid signature under applicable federal law or state contract law.
With this final rule issued, plaintiffs’ attorneys will find it challenging to prevail on lawsuits alleging one-to-one consent is required.
