Eleventh Circuit Vacates the Federal Communications Commission’s One-to-One Consent Rule, by Richard Perr, Monica Littman, Dominic Borelli, Tabitha Mangano, and Kristen Ruotolo, 3-5-2025

Just days before the Federal Communications Commission’s One-to-One Consent Rule was set to take effect, the U.S. Court of Appeals for the Eleventh Circuit vacated the rule on the basis that the FCC exceeded its authority under the Telephone Consumer Protection Act (TCPA).

Under the TCPA, those wishing to make a robocall or robotext must obtain the called party’s “prior express consent.”

In 2023, in an effort to regulate the lead generation industry, the FCC modified the definition of “prior express consent.” Specifically, Part III.D of the 2023 Order states that a consumer cannot consent to a telemarketing or advertising robocall unless (1) he consents to calls from only one entity at a time, and (2) he consents only to calls whose subject matter is “logically and topically associated with the interaction that prompted the consent.”

The Insurance Marketing Coalition Limited (IMC), a consortium of over twenty entities representing a cross-section of insurance industry stakeholders, challenged the interpretation arguing that the TCPA requires only “prior express consent” and does not contemplate a “one seller” requirement.

The court concluded in its January 24th decision that “in its attempt to “implement” the TCPA, the FCC overstepped its statutory boundaries” thereby vacating the rule, which was set to take effect on January 27, 2025. The Eleventh Circuit ruled that the 2023 Order’s new consent restrictions impermissibly conflict with the ordinary statutory meaning of “prior express consent” under the TCPA. Accordingly, the court granted IMC’s petition for review, vacated Part III.D of the 2023 Order, and remanded the matter to the FCC for further proceedings.

Just prior to the court’s ruling on the same day, the FCC announced it was postponing the change by a year (until January 26, 2026) pending judicial review.

Given the 11th Circuit’s decision, It is not yet clear if the FCC will seek to pursue any further action. Kaufman Dolowich will continue to monitor developments.

In the meantime, the court’s decision does not impact companies existing consent obligations under the TCPA.

Authors: Richard Perr, Co-Chair of the Financial Services and Institutions Practice Group, Partner Monica Littman, Associate Dominic Borelli, Associate Tabitha Mangano and Associate Kristen Ruotolo