FCC Delays One-to-One Consent Rule

The FCC has postponed the January 27, 2025, effective date of the one-to-one consent rule (“Rule”) pending the outcome of the ongoing litigation in Insurance Marketing Coalition Ltd v. FCC. Notwithstanding the IMC challenge, the Rule is postponed to January 26, 2026, or until the date specified in a Public Notice following a decision in the IMC case, whichever is sooner.

According to the FCC’s Order, under the Administrative Procedures Act (5 U.S.C. § 705), an agency may delay the effective date of an action pending judicial review. The FCC noted that, given the advanced stage of the IMC challenge, it is in the interest of justice to postpone the Rule’s effective date to avoid imposing new burdens on parties and to protect texters and callers acting in good faith from defending against private suits while the Rule is still under judicial review.

The TCPA requires “prior express written consent” for telemarketing calls to wireless numbers using an automated telephone dialing system or to wireless or landline numbers using prerecorded or artificial voice messages.

The Rule, adopted by the FCC in December 2023, significantly redefined “prior express written consent” to apply to a single seller at a time, prohibiting the listing of multiple sellers in a single consent form or using “marketing partners” hyperlinks.

Additionally, the content of calls or texts must be “logically and topically associated” with the interaction where the consumer provided consent. Although not precisely defined, the FCC indicated that consent given on a car loan comparison website does not extend to loan consolidation calls.

The IMC instantly petitioned the Eleventh Circuit to stay or vacate the Rule, arguing it exceeds the FCC’s authority, is arbitrary and capricious, and violates the Administrative Procedure Act. During December 2024 oral arguments, the Eleventh Circuit panel expressed concerns about the FCC’s potential overreach and questioned whether the Rule restricts consumers’ statutory right to consent.

The timing of the Eleventh Circuit’s ruling is uncertain but expected within the next few months. The Eleventh Circuit can uphold or vacate the entirety or specific parts of Rule, or remand it back to the FCC for further consideration or additional proceedings. While most businesses will not be spared the costs in operationalizing the Rule, the regulatory burden and potential TCPA liability could be wiped out by the forthcoming ruling.

Join M&S Partners Michele Shuster and Chris Wager on Monday, January 27th,  for an informative discussion reflecting the up-to-the-minute status of one-to-one consent rule here.

See M&S’s TCPA ATDS/PRM Consent Requirements Chart here.

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 1667 Aaron Parry
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