Eleventh Circuit Vacates One-to-One Consent Rule

The Eleventh Circuit has vacated the “one-to-one consent” and “logically and topically related” requirements under the revised definition of “prior express written consent” in the case, Insurance Marketing Coalition Ltd v. FCC, and remanded the case to the FCC for further proceedings.

Under the now-vacated change, consumers would have had to consent to receive calls from only one entity at a time. This meant that if a consumer wanted to receive calls from multiple companies, they had to provide separate consent for each one. Additionally, the subject matter of the calls would have been required to be logically and topically related to the interaction that prompted the consent. For example, if a consumer consented to receive calls on a car loan website, they could not have been contacted about unrelated topics like loan consolidation.

The IMC argued that these additional “prior express consent” restrictions were inconsistent with the ordinary statutory meaning of “prior express consent” under the TCPA. The TCPA requires callers to obtain “prior express consent” from consumers before making certain calls, but it does not define the phrase. IMC contended that the FCC’s new “prior express written consent” restrictions went beyond what the TCPA mandates.

The Court agreed with IMC, finding that the FCC exceeded its statutory authority under the TCPA. The Court emphasized that statutory interpretation begins and ends with the text of the TCPA. Since the TCPA does not define “prior express consent,” the Court held that Congress intended to incorporate the common law concept of consent into the TCPA. This means that consent must be given voluntarily and clearly.

Regarding the “one-to-one consent” restriction, the Court held that it conflicts with the ordinary meaning of “prior express consent.” Under common law principles, a consumer can give consent to receive calls from multiple entities at once, as long as the consent is clear and unmistakable. The FCC’s restriction, which required separate consent for each caller, was deemed an overreach.

Similarly, the Court found that the “logically and topically related” restriction impermissibly altered the meaning of “prior express consent.” A consumer can consent to receive calls on unrelated topics, as long as the consent is clear and unmistakable. The FCC’s restriction was seen as an unnecessary and unauthorized addition to the statutory requirements.

Although most businesses were not spared the costs of implementing solutions to meet the “one-to-one consent” and “logically and topically related” standards, the regulatory burden and potential TCPA liability are now gone. Businesses now have more flexibility in their consumer communications. This is an exceptionally critical time to assess compliance with all other aspects of federal and state telemarketing regulations, especially federal Do-Not-Call prohibitions, and E-SIGN Act.

Associate

Aaron works across numerous highly-regulated industries, helping them comply with state and federal laws related to privacy and data security, cannabis, marketing, teleservices, and other consumer protection matters.

2500 761 Aaron Parry
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