Loper Blight: 11th Circuit Vacates FCC Lead Generator “One-to-One” and “Logically/Topically Related” Consent Provisions

In yet a third setback for the FCC since the Supreme Court’s Loper Bright opinion eliminating Chevron deference, the 11th Circuit last Friday in Insurance Marketing Coalition Limited v. FCC, vacated two TCPA consent requirements that the FCC added in a December 2023 Report and Order to its prior express written consent definition for telemarketing robocalls and robotexts (shorthand for autodialed and artificial/pre-recorded voice calls and autodialed texts).  The first provision, intended to curb what the FCC viewed as lead generator abuses, added the requirement that a called party’s consent for such calls is limited to one identified seller at a time, referred to as the “one-to-one consent” restriction.  The second provision required that the consent provided for a call or message “must be logically and topically associated with the interaction that prompted the consent.”  These rules were slated to go into effect Monday, January 27; however, the Commission’s Consumer and Governmental Affairs Bureau, had earlier in the day postponed the effective date of the rule, anticipating an imminent decision from the 11th Circuit.

As a threshold matter, the 11th Circuit agreed with the FCC that the Commission has authority under the TCPA to promulgate regulations around the TCPA’s “prior express consent” requirement for autodialed voice calls and texts to mobile numbers, and pre-recorded/artificial voice calls to mobile and residential lines.  However, the court found that the FCC’s authority to do so is circumscribed by the plain meaning of the term “prior express consent” in the statute, which the court found is dictated by the term’s common law definition.  In a post-Loper Bright world, it is the court’s province to interpret the meaning of the statute, with no more deference to the agency’s interpretation of the statute than to that of any other litigant, which the court made clear throughout its opinion as it picked apart the Commission’s arguments.  

As to the one-to-one rule, the court found that the FCC’s new provision strayed too far from the plain meaning of the statutory term “prior express consent,” finding no limitations in the common law definition of consent that would invalidate a single consent provided by a consumer extending to multiple parties.  Similarly, the court found no limitation in the definition of consent tying the validity of a consumer’s consent to its relationship to the “interaction” that gave rise to that consent.

The topically/logically related provision also may have fallen victim to an unartfully crafted rule on the part of the FCC.  What the FCC was likely trying to get at was baking into its rules a requirement that a message received is within the scope of the consent provided.  This the Commission could have said more clearly, which would have hardly been controversial from a common law standpoint.  Instead, it came up with an overly paternalistic rule that essentially prohibited obtaining a consumer’s consent for communications unrelated to the primary subject matter of the customer interaction.  For example, in the case of a website that a consumer is visiting, even where the caller or sender has unambiguously provided “prior express consent” within the meaning of the statute for later communications, under the Commission’s rule, that consent would have been invalid if it was for communications unrelated to the subject matter that brought the consumer to the website in the first place.

In both cases, the court made short shrift of the FCC’s argument that policy considerations justified the rule changes adopted by the FCC.  This is hardly surprising.  In the post-Loper Bright world, plain meaning trumps policy every day of the week, and we suspect that over time the administrative landscape will become increasingly littered with vacated rules well-intentioned from a policy standpoint, that were nonetheless inconsistent with a court’s interpretation of a particular statute’s meaning.

As a final note, the IMC court otherwise left intact the “prior express written consent” requirement for telemarketing robocalls and robotexts to mobile numbers adopted by the FCC in a 2012 FCC Report and Order, which was also adopted under an interpretation of the “prior express consent” provision.  There, the FCC found that in adopting the prior express written consent rule, it had authority to determine the form of prior express consent required for particular types of calls (telemarketing versus informational/transactional), a question the court declined to reach in IMC.

That however, may not be the last word on court review of the prior express written consent definition.  Under the Hobbs Act, the validity of FCC rules can only be directly challenged in the Courts of Appeals on a timely filed petition for review, and courts in private TCPA litigation have, relying on the Hobbs Act, historically declined to collaterally attack settled FCC decisions in TCPA litigation.  However, currently pending before the Supreme Court is an action under the FCC’s TCPA fax rules where the plaintiff argued that the district court was not bound to follow the FCC’s pronouncements, a position rejected by both the district court and the Ninth Circuit.

In the recent oral argument in the case, McLaughlin Chiropractic Associates v. McKesson Corp., Case No. 23-1226, several conservative justices who have been hostile to Hobbs Act deference to agency action in private litigation, reportedly questioned whether the Hobbs Act required the lower courts to follow the FCC’s TCPA fax rule determination.  Should that view prevail, trial courts would have the opportunity to reject TCPA claims based on FCC decisions where the court might have a different view of the law than the Commission.  Given the 11th Circuit’s decision in IMC, the “prior express written consent” definition could potentially be in the crosshairs.  At the same time, this could also increase TCPA risk for calling and texting parties to the extent other long-standing FCC rulings on required consent, such as for transactional and informational communications to mobile numbers, could likewise be subject to collateral attack.