Eleventh Circuit Vacates FCC’s TCPA One-to-One Consent Rule

Just days before the FCC’s one-to-one consent rule was to take effect on January 27, 2025, the Eleventh Circuit vacated the rule, stating that the FCC “impermissibly exceeded its statutory authority by attempting to redefine ‘prior express consent’ to include” additional restrictions not contemplated by the TCPA.

The FCC had adopted its one-to-one consent rule to amend the TCPA regulation—reflecting its own interpretation of the TCPA’s statutory definition of “prior express consent”—to close what the agency characterized as a “lead generator loophole” in the law. Pursuant to this “loophole,” businesses (particularly lead generators) might leverage a consumer’s single instance of consent to facilitate marketing by multiple other companies. The FCC’s amendments to the TCPA regulation dictated that businesses “must obtain consumer consent to receive robocalls and robotexts one seller at a time—rather than have a single consent apply to multiple telemarketers at once.”

In vacating the rule in Insurance Marketing Coalition v. FCC, the Eleventh Circuit reasoned that the FCC’s proposed restrictions conflicted with the ordinary, common law meaning of “prior express consent.” The court asserted that, to provide such consent, “one need only clearly and unmistakably state [] that he is willing to receive the robocall,” and the FCC did not have the requisite authority to impose additional constraints.

The Eleventh Circuit’s decision came right after the FCC issued its own order postponing the effective date of the rule to January 26, 2026 pending judicial review in Insurance Marketing Coalition.

We provide more detail about the one-to-one consent rule below.

Lead Generator Loophole in the Existing TCPA Regulation

The purported loophole identified by the FCC was found in the TCPA regulation’s definition of “prior express written consent”: “an agreement, in writing, bearing the signature of the person called that clearly authorizes the seller to deliver or cause to be delivered to the person called advertisements or telemarketing messages.” This definition did not limit the number of businesses that could rely on a single instance of consent. According to the FCC, businesses—particularly lead generators and comparison-shopping websites—could interpret a consumer’s single consent to one company as consent to marketing by multiple other companies.

One-to-One Consent Rule and Amendments to the TCPA Regulation

The FCC claimed its existing regulation allowed “flimsy claims of consent to bombard consumers with unwanted robocalls and robotexts” and thus amended the regulatory definition of “prior express written consent” to include one-to-one consent. The new definition would have limited the consumer’s authorization to messages from “no more than one identified seller.”

As a practical matter, the amendment would have meant that businesses could only obtain consent on behalf of themselves or other companies that were specifically identified and authorized by the consumer. References in the consent disclosure to receiving messages from, for example, “marketing partners” would not suffice.

Significantly, businesses could have still engaged in lead generation under the new rule, but the method for obtaining consent had to allow the consumer to affirmatively select the particular companies from which the individual wished to receive messages. The FCC suggested various methods for doing so, including:

1. Providing “a check box list that allows the consumer to choose each seller that they wish to hear from”; or
2. Displaying “a clickthrough link to a business so that it may obtain requisite consent from the consumer directly.”

In turn, companies that receive marketing lists from third parties would have no longer been able to rely on blanket consents that those lead generators received from consumers. Instead, such companies would have had to verify that the lead generator-obtained consent for the specific company that would send marketing communications. If not, those businesses had to find other ways of complying with the TCPA’s prior express consent requirement, such as by soliciting consent directly from consumers.

Logically and Topically Related

The FCC’s new rule also stated that “calls and texts [for which a business received prior express written consent] must be logically and topically associated with the interaction that prompted the consent.” In other words, businesses would have been prohibited from marketing products or services unrelated to the context in which the consumer provided consent. Similar to the one-to-one consent restriction, the Eleventh Circuit vacated this requirement, finding that the FCC exceeded its authority in imposing this prohibition.

Relief for Lead Generators

The Eleventh Circuit’s decision may come as a relief to lead generators and other businesses that had been modifying their consent processes to align with the anticipated one-to-one consent rule. The decision may also foreshadow increased litigation over FCC restrictions on telemarketing practices and other activities regulated by the TCPA.

In any event, businesses should continue to monitor for TCPA developments and consider other consent requirements imposed by the wireless carriers, third-party messaging providers, and industry guidelines.