Last month, we discussed the motion filed by the National Consumers League and four small business owners to intervene in the case of Insurance Marketing Coalition Limited. v. FCC. This motion aimed to challenge the Eleventh Circuit panel’s decision that vacated the FCC’s 2023 Order, known as the One-to-One Rule. Last week, the District of Columbia, along with 27 states, filed an amicus brief in support of a petition for rehearing en banc.
For background, under the Telephone Consumer Protection Act (TCPA), companies defined as telemarketers under the statute are prohibited from making certain telemarketing calls using an automatic telephone dialing system (ATDS) or artificial or prerecorded voice messages without “prior express written consent.” As discussed here, in December 2023, the FCC issued an order adopting rules aimed at closing what it termed the “lead generator loophole” (2023 Order). The FCC objected to lead generators using a single webform to obtain prior express written consent for a list of marketing partners. The FCC also objected to webforms that obtained broad consent for marketing calls about a wide range of products and services. The 2023 Order adopted a new definition of “prior express written consent” that would have prohibited consumers from giving consent to receive marketing calls from more than one company at a time or about products and services that were not “logically and topically associated with” those promoted on the website. The Eleventh Circuit held that the FCC exceeded its authority under the TCPA because the consent restrictions conflicted with the ordinary meaning of “prior express consent.”
In their brief, the amici states claim they have invested substantial resources into combating robocalls through legislation, public-private partnerships, and aggressive legal action. However, the states claim these efforts are hampered by the interstate nature of robocalls. The amici argue that the FCC’s one-to-one consent rule is a vital complement to state efforts.
“The FCC’s one-to-one consent rule at issue in this appeal is a critical nationwide enforcement tool — complementing state enforcement efforts — that aims to shut the spigot of illegal robocalls. The rule ensures that consumers receive clear and conspicuous disclosures when consenting to sharing their contact information with third parties and requires that a specific seller obtain express consent to contact a specific consumer. Put another way, a lead generator may not exploit a consumer’s dubiously obtained ‘consent’ to expose the consumer’s contact information to thousands of third parties for profit.”
The amici urge the court to grant en banc rehearing given the importance of the rule and its potential benefit to Americans.
Troutman Pepper Locke will continue to monitor this litigation and provide updates.