The U.S. Court of Appeals for the Eleventh Circuit recently vacated the implementation of the Federal Communications Commission’s (FCC) one-to-one consent requirement under the Telephone Consumer Protection Act (TCPA) and remanded it to the FCC for further proceedings, effectively eliminating the rule. This decision comes on the heels of the FCC’s announcement that it would postpone implementation of the rule by at least one year. The one-to-one consent rule would have significantly altered the requirements for obtaining consent to place calls or text messages under the TCPA.
Companies should keep an eye on another FCC rule that will change the requirements regarding consumers’ ability to revoke consent, scheduled to take effect on April 11, 2025. Meanwhile the U.S. Supreme Court will decide to what extent courts must defer to the FCC’s interpretation of the TCPA. Ongoing changes in the regulatory landscape for the TCPA underscore the importance of reviewing and prioritizing TCPA compliance in 2025.
One-to-One Consent Requirement Eliminated by 11th Circuit
On Jan. 24, 2025, the FCC announced that it would postpone the highly anticipated rule change requiring one-to-one consent — set to go into effect Jan. 27, 2025 — pending judicial review. Shortly after the FCC’s announcement on the same day, the Eleventh Circuit determined that the FCC exceeded its statutory authority by adopting the proposed one-to-one consent requirement. The Eleventh Circuit vacated implementation of the rule and remanded it to the FCC for further proceedings.
The Eleventh Circuit’s ruling is big news for companies and lead generators. Though the TCPA has long required prior express written consent of the called party before placing telemarketing calls or text messages to cell phones using an automatic telephone dialing system, the FCC’s one-to-one consent requirement would have required companies and lead generators to obtain consent from consumers “one seller at a time.” In other words, a consumer’s single consent would only authorize calls or text messages from a single company. As a result, comparison shopping websites, often the source of lead generation, would have been prevented from obtaining consumer consent for several entities at once through a disclosure listing those entities.
Notwithstanding the elimination of the one-to-one consent rule, companies should still ensure compliance with the prior express consent rules under the TCPA.
Changes to Revocation of Consent Rules Effective April 11, 2025
Earlier in 2024, the FCC published a report and order containing rules that will alter the way companies treat consumers’ revocation of consent. The new rules are scheduled to take effect on April 11, 2025. The order amended existing rules and adopted new rules to make it simpler for consumers to revoke consent and required companies to honor these requests in a timely manner.
The rules prohibit an exclusive means of revoking consent — consumers may revoke consent in any reasonable manner. The rules also require companies to honor the revocation within 10 business days of receipt. Companies also may send a one-time text message confirming a consumer’s revocation request without violating the TCPA as long as they send it within five minutes of the request and do not include any marketing information. The confirmation text can request clarification on the types or categories of messages the consumer no longer wants to receive, but if the consumer does not respond, the revocation applies to all calls and texts from the sender. Finally, when the consumer revokes consent in any reasonable manner, the revocation extends to calls and texts regardless of the method used to communicate the revocation.
With the rule changes a few months away, companies should review procedures for tracking and responding to consumers’ consent revocation.
Supreme Court Considers Deference to the FCC
As companies prepare for new FCC rule changes, the U.S. Supreme Court is considering how much deference district courts must give to FCC orders. While there is no dispute that federal appellate courts have exclusive authority to hear pre-enforcement challenges to FCC guidance, a case before the U.S. Supreme Court raises the question of whether federal appellate courts have exclusive authority to consider the validity of the legal interpretations reflected in that guidance in private lawsuits, requiring district courts to defer to agency guidance. In that case, the Ninth Circuit decertified a class of plaintiffs in a TCPA class action based upon what it considered the binding effect of the FCC’s guidance and Congress’s intent to provide finality and certainty. The Supreme Court will now consider whether trial courts are required to accept the interpretations of the TCPA in FCC orders or guidance.
Given the ever-changing regulatory and legal landscape for the TCPA, businesses should revisit their calling and texting practices and prioritize TCPA compliance in 2025.