The Court of Appeals for the Eleventh Circuit blocked a rule from the Federal Communications Commission (FCC) that was set to go into effect today interpreting the definition of “prior express consent” under the Telephone Consumer Protection Act (TCPA).
The background: The case originated from concerns within the lead generation and telemarketing industries about the FCC’s 2023 rule, which aimed to impose stricter requirements on obtaining prior express consent from consumers. The FCC’s new rule sought to introduce two significant restrictions
- Consumers could only provide consent to receive robocalls from a single entity at a time, and
- Consent would only be valid for calls related to topics that were “logically and topically associated” with the initial interaction that prompted the consent.
These changes were met with resistance from industry stakeholders who argued that they exceeded the FCC’s authority and imposed unreasonable burdens on businesses that rely on lead generation and telemarketing.
The plaintiff in the case, representing a consortium of businesses affected by the rule, argued that the FCC’s new restrictions were inconsistent with the statutory meaning of “prior express consent” under the TCPA. They contended that the rule imposed additional, unwarranted hurdles that conflicted with established common-law principles of consent, which allow for broader and more flexible interpretations.
The ruling: In its decision, the Eleventh Circuit agreed with the plaintiff, concluding that the FCC had exceeded its statutory authority by imposing restrictions that conflicted with the ordinary meaning of “prior express consent” as understood under the TCPA. The court found that the FCC’s interpretation unduly limited consumers’ ability to provide consent and placed unnecessary constraints on businesses seeking to communicate with potential customers.
- The ruling emphasized that the statutory text of the TCPA requires only “prior express consent” without additional qualifications such as the “one-to-one” consent model proposed by the FCC. The court highlighted that under common law, consent is generally considered to be a voluntary and clear willingness to receive communication, regardless of whether it applies to one or multiple entities at a time.
- The decision also criticized the FCC’s logic-and-topic restriction, pointing out that consumers should have the ability to provide broad consent for related services without facing arbitrary limitations. As an example, the court noted that a consumer visiting an auto loan comparison website could logically consent to receiving calls about loan consolidation, even if the two topics were not directly related under the FCC’s proposed standards.
- Ultimately, the court vacated the challenged portion of the FCC’s 2023 rule and remanded the matter for further proceedings, signaling that any future regulations must align with the clear statutory language of the TCPA and established legal principles.
