In a stunning, if not entirely unexpected development, the United States Court of Appeals for the Eleventh Circuit has vacated the Federal Communications Commission’s (“FCC”) one-to-one consent rule. The decision prevented the rule from becoming law on the eve of its anticipated effective date.
Why was the One-to-One Consent Rule Vacated?
As alluded to in one of our most recent blogs on the topic, in which we detailed the results of last month’s oral argument over the rule’s legality, the Eleventh Circuit ultimately struck down the rule because it determined that the FCC had exceeded its authority. Specifically, the Court found improper the FCC’s rewrite of what is “prior express consent” within the meaning of the Telephone Consumer Protection Act’s (“TCPA”). While the Court acknowledged that the TCPA confers authority on the FCC to enact rules which implement the statute, it concluded that this authority’s scope does not extend to imposing consent restrictions which conflict with the plain meaning of the statute.
Prior express consent has long been understood to mean “permission that is clearly and mistakenly granted by action or words, oral or written” and given before the call is received. Thus, because the FCC’s rule provided that “consumers cannot consent to receive telemarketing calls (1) from more than one entity at a time or (2) whose subject matter is not logically or topically related to, for example, the website on which the consumer gives consent,” the FCC “exceeded its statutory authority under the TCPA.”
The Eleventh Circuit ruled that, when stated clearly and unmistakably, consumers have the right to consent to: (1) receive calls from more than one entity at a time; as well as (2) calls that do not topically relate to the website on which they provide consent. By seeking to restrict that right, the FCC rewrote the law, for which it has no such authority – only Congress does.
What Does this Mean for the Future of the One-to-One Consent Rule?
The nullification of the one-to-one consent rule presents many questions regarding what lies ahead for the lead generation and telemarketing industries. These questions are likely to include, at a minimum:
- May websites return to using marketing partner hyperlinks that list dozens of entities?
- May TCPA consent language itself include identification of multiple entities to which consent is to be provided?
- Is it most prudent to simply operate as though one-to-one consent is the new industry norm, even in the absence of a formal FCC rule?
- Does logically and topically related matter anymore?
In order to best understand what the answer to each of these questions may be, it is imperative to consult with experienced marketing attorneys. If you require assistance with preparing your company for the repercussions of the 1-to-1 consent rule’s termination, please call us at 212-246-0900 or email us at info@kleinmoynihan.com.
The material contained herein is provided for informational purposes only and is not legal advice nor is it a substitute for seeking legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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