Telephone Consumer Protection Act

Insurance Marketing Coalition, Ltd. v. Federal Communications Commissions, No. 24-10277, 2025 WL 289152 (11th Cir. Jan. 24, 2025)

“At bottom, the FCC has ‘decreed a duty on [lead generators] that the statute does not require and that the statute does not empower the FCC to impose.’ The FCC therefore exceeded its statutory authority in redefining ‘prior express consent’ to include the additional prior express consent’ restrictions.”

With these words, the U.S. Court of Appeals for the Eleventh Circuit, vacated Part III.D of the FCC’s 2023 Order requiring one-to-one consent and that consent be logically-and-topically-related, determining that vacating the Order was appropriate because “exceeding statutory authority is a serious defect.”

Background of the Proceeding and FCC Order.

The TCPA does not define the phrase “prior express consent.” Congress gave the Federal Communications Commission (“FCC”) authority to prescribe regulations and implement the TCPA. In 2012, the FCC determined that the phrase “prior express consent” has different meanings for different types of calls. In its 2012 Order (which the Court took the time to note was not at issue in the case), when a call or text subject to the TCPA introduces an advertisement or constitutes telemarketing, it must be accompanied by “prior express written consent,” not simply “prior express consent.”

Through the 2023 Order, the FCC sought to impose further restrictions on such consent, prohibiting consent: (1) from more than one entity at a time or (2) whose subject matter is not logically and topically related to the interaction prompting the consent, e.g., the website on which the consumer gave consent.

Petitioner’s Arguments.

Petitioner advanced three challenges to the 2023 Order. First, the FCC exceeded its statutory authority by impermissibly interpreting the phrase “prior express consent” in a way that is inconsistent with the ordinary statutory meaning of the phrase, and improperly differentiating telemarketing and advertising calls on the one hand and non-telemarketing and non-advertising calls on the other.

Second, the 2023 Order violated the First Amendment to the U.S. Constitution by imposing content-based discrimination on marketing calls without proper justification. Finally, the Order was arbitrary and capricious under the Administrative Procedures Act (“APA”) because it lacked an adequate factual basis for the restrictions, failed to respond meaningfully to material comments, and failed to justify its impact on small businesses. Because the Court concluded that the 2023 Order attempts to define “prior express consent” in a way that conflicts with its ordinary statutory meaning, the Court did not address Petitioner’s other arguments.

The 2023 Order Exceeded the FCC’s Statutory Authority By Conflicting with the Ordinary Statutory Meaning of “Prior Express Consent.”

• The one-to-one consent restriction.

The Court succinctly characterized the issue as turning on whether the restriction was consistent with the ordinary meaning of “prior express consent” in the TCPA, recognizing that the TCPA only requires “prior express consent,” not “‘prior express consent’ plus.” Where a statute leaves a phrase undefined, as is the case here, Courts typically give that phrase its plain and ordinary meaning; however, when Congress uses terms that have accumulated settled meaning under the common law, a Court must infer, unless the statute dictates otherwise, that Congress means to incorporate the established meaning of these terms.

In this instance, the Court noted that its precedent fills the void left by the TCPA’s failure to define the term “prior express consent.” Recognizing that “prior express consent” only requires that one “clearly and unmistakably” state she is willing to receive a call before it occurs, the Court also cited the FCC’s own Brief as providing support for its conclusion that the one-to-one consent restriction was impermissible. In its Brief, the FCC conceded that, “t[o] be sure, there may be particular instances, as [Petitioner] contends, in which it would be reasonable to conclude that a consumer provides willing, informed agreement to receive robocall marketing from ‘multiple named intermediaries.’” The Court characterized this acknowledgment, stating “[b]etter put, the FCC concedes that a consumer could give ‘prior express consent’ under the TCPA where its 2023 Order categorically says a consumer could not. So as even the agency understands, the one-to-one consent restriction is unlawful.”

• The logically-and-topically-related requirement.

In concluding that the FCC’s logically-and-topically-related restriction was improper, the Court cited an example from Petitioner’s Brief, and the FCC’s acknowledgment at oral argument. In its Brief, Petitioner noted that pursuant to the 2023 Order, a consumer can consent to calls about auto loans while shopping online for auto loans but cannot consent to calls about loan consolidation  even if the consumer “clearly and unmistakably” states, before receiving the calls that she is willing to receive telemarketing and advertising calls about loan consolidation. Rejecting this outcome imposed by the 2023 Order, the Court made clear that the “FCC’s authority to ‘implement’ the TCPA gives it no authority to mandate such a result.”

The FCC’s concession at oral argument further bolstered the Court’s conclusion. When presented with a hypothetical where a consumer checks three boxes agreeing to receive calls subject to the TCPA from three separate mortgage companies, then checks a fourth box agreeing to receive calls from a home repair business, the FCC agreed that the logically-and-topically-related requirement would invalidate the consumer’s consent to receive calls from the home repair business. Critically, the FCC also acknowledged that, but for the 2023 Order, the TCPA would allow that consumer to consent to home repair business calls. Because the logically-and-topically-related restriction would preclude consent where, under the TCPA, there indeed would be consent, the restriction failed.

A copy of the opinion can be found by clicking here.