In 2023, the FCC issued a legislative rule interpreting the meaning of the phrase “prior express consent” as used in the TCPA. The proposed rule sought to close the “lead generator loophole,” and would impose new consent requirements on telemarketers. First, it would require both “one-to-one” consent, meaning telemarketers must individually obtain “prior express written consent” from consumers for each entity attempting to make robocalls to those consumers. Second, it would require that the robocalls consented to were logically and topically associated with the interaction that prompted the consent. In other words, telemarketers could not obtain “prior express written consent” to make robocalls to consumers using their milk sales website to also make robocalls to that consumer about cookies.
On January 24, 2025, the Eleventh Circuit found that the proposed rule was invalid and held that the FCC exceeded its statutory authority under the TCPA when it enacted the proposed rule because its new consent restrictions “impermissibly conflict with the ordinary statutory meaning of “prior express consent.”
The One-to-One-Consent Restriction
In rejecting the one-to-one-consent restriction, the Eleventh Circuit noted the breadth of “prior express consent” under the TCPA, highlighting both in-circuit and out-of-circuit cases in which called parties were found to have given prior express consent to multiple entities at one time. Id. at 18.1 Further, the Eleventh Circuit noted that the FCC itself acknowledged in its briefing that a consumer could give “prior written...
