Cybersecurity Policy Report, FCC’s ‘One-to-One’ Robotext, Robocall Rule Overturned by Court, (Jan 28, 2025)

By Lynn Stanton

In a unanimous decision, a three-judge panel of the U.S. Court of Appeals for the 11th Circuit (Atlanta) has vacated provisions in the FCC’s 2023 order limiting consents for marketing robocalls and robotext to one entity at a time, finding that the FCC impermissibly expanded on the TCPA’s requirement of prior consent for such calls.

The FCC order was aimed at closing the “lead generator” loophole under its prior Telephone Consumer Protection Act (TCPA) rules that allowed comparison shopping websites and lead generators to gain consent from often unwitting consumers for multiple parties to robocall and robotext them.

Writing for the court, Circuit Judge Elizabeth Branch said, “Under the 2023 Order, no longer must robocallers merely obtain ‘prior express consent,’ as the TCPA requires. Instead, they must go through the pains of obtaining prior express consent (1) on a one-to-one basis and (2) during an ‘interaction’ that is ‘logically and topically associated’ with the subject matter of the robocalls,” Insurance Marketing Coalition Ltd. v. FCC, U.S.A., No. 24-10277, slip op. at 24 (11th Cir. Jan. 24, 2024).

Judge Branch rejected the FCC’s argument that, absent the fulfillment of the one-to-one and “logically and topically associated” requirements, consumers cannot be presumed to “voluntarily and willingly” invite robocalls. “[W]hether a consumer can be ‘presumed’ to consent to robocalls in a particular situation says nothing about whether a consumer has in fact consented to robocalls in that situation. As long as a consumer clearly and unmistakably states, before receiving the robocall, that he is willing to receive the robocall, he has given ‘prior express consent’ under the TCPA,” slip op. at 23.

She added that Congress “‘drew a line in the text of the statute’ between ‘prior express consent’ and something more burdensome,” and that the FCC “stepped right over” the line that Congress drew,” slip op. at 26.

The court remanded the order to the FCC for further proceedings. The FCC’s Consumer and Governmental Affairs Bureau earlier this month postponed the effective date of 2023 rule changes, noting that the rules were under judicial review.

The court noted that under the Supreme Court’s Loper Bright v. Raimondo decision last year, it made its own independent decision on the scope of the FCC’s authority under the TCPA and whether it acted within that authority.

Judge Branch was joined in her opinion by Circuit Judges Robert J. Luck and Barbara Lagoa.

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