The FCC's One-to-One Consent Rule, Vacated Before It Ever Took Effect

What the FCC Adopted

In a Second Report and Order adopted in December 2023 in CG Docket Nos. 21-402, 02-278 and 17-59 (FCC 23-107), the Federal Communications Commission took several actions against unlawful text messaging. It required terminating mobile wireless providers to block text messages from a particular number after notification from the Commission, codified that the National Do-Not-Call Registry's protections extend to text messages, and encouraged providers to make email-to-text an opt-in service. The order was published at 89 FR 5098 on January 26, 2024.

One part of that order did something different. In what the Commission described as closing the lead generator loophole, it revised the definition of prior express written consent at 47 CFR 64.1200(f)(9). That revision carried its own effective date. As the Federal Register notice put it, the rule was effective March 26, 2024, "except for the amendment to 47 CFR 64.1200(s), in instruction 5, which is effective July 24, 2024, and the amendment to 47 CFR 64.1200(f)(9), in instruction 6, which is effective January 27, 2025."

The One-to-One Consent Requirement

The first of the two new restrictions required that written consent authorize robocalls and robotexts from one seller at a time. The Commission wrote that callers "must obtain a consumer's prior express written consent to robocall or robotext the consumer soliciting their business," and that "[t]his requirement applies to a single seller at a time, on the comparison shopping websites that often are the source of lead generation."

The Commission paired that with a disclosure condition and an E-Sign condition:

• Consent had to follow a clear and conspicuous disclosure that the consumer would receive robotexts or robocalls from the seller, with "clear and conspicuous" meaning notice apparent to a reasonable consumer
• Where the E-Sign Act applied to the consumer's signature, all elements of E-Sign had to be present
• Lead generators could still collect and sell leads; the order stated they would not be able to collect and share the consents for autodialed or prerecorded telemarketing calls

The Logically and Topically Related Limit

The second restriction limited the subject matter of the resulting calls. Robocalls and robotexts made on consent obtained through a comparison shopping website had to be logically and topically related to that website. The Commission's own illustration was that "a consumer giving consent on a car loan comparison shopping website does not consent to get robotexts or robocalls about loan consolidation." It declined to adopt a definition of "logically and topically," reasoning that the balance struck was the right one between lead generation and protection from unwanted messages.

The Eleventh Circuit Challenge

Insurance Marketing Coalition Limited, a consortium the opinion describes as representing over twenty insurance industry stakeholders, petitioned for review of Part III.D of the order. Its petition raised three grounds: that the Commission exceeded its statutory authority, that the order imposed content-based discrimination on marketing calls in violation of the First Amendment, and that the order was arbitrary and capricious under the Administrative Procedure Act. A panel of Judges Branch, Luck and Lagoa heard argument and decided the case on January 24, 2025.

The court reached only the first ground. It agreed that the two consent restrictions conflicted with the ordinary statutory meaning of "prior express consent," granted the petition, vacated Part III.D and remanded. The First Amendment and APA arguments went unaddressed.

The Court's Statutory Reading

The TCPA prohibits autodialed and prerecorded-voice calls made without "the prior express consent of the called party" (47 U.S.C. 227(b)(1)(A), (B)) and does not define the phrase. The Eleventh Circuit read it against the common law, citing its own decisions in Osorio, Lucoff, Schweitzer and Gorss Motels. On that reading, to give prior express consent a person need only "clearly and unmistakably" state, before the call, a willingness to receive it.

Gorss Motels carried particular weight: there, fax recipients had given prior express permission to a specific hotel and, more broadly, its "affiliates," in a single franchise agreement. The panel treated that as showing consent can reach multiple, vaguely defined entities at once. Against that baseline, a rule that categorically rejected consent given to several sellers together was altering the statutory term rather than implementing it.

But changing the plot line is exactly what the FCC tried to do here. "Congress drew a line in the text of the statute" between "prior express consent" and something more burdensome. Rather than respecting the line that Congress drew, the FCC stepped right over it.

Insurance Marketing Coalition Ltd. v. FCC, No. 24-10277 (11th Cir. Jan. 24, 2025)

The panel applied the same analysis to the logically-and-topically-related restriction, noting the Commission's concession at oral argument that, without the 2023 order, the TCPA would permit a consumer who checked a box for a home repair business alongside boxes for three mortgage companies to consent to the home repair calls. On vacatur, the court applied the Black Warrior Riverkeeper factors, found that exceeding statutory authority is a serious defect, and noted that the Commission did not contest vacatur as the appropriate remedy.

An Effective Date That Never Arrived

Three days before the decision, on January 24, 2025, the Acting Chief of the Consumer and Governmental Affairs Bureau issued Order DA 25-90, postponing the effective date of the revised 64.1200(f)(9) by twelve months to January 26, 2026, or until a date announced after the Eleventh Circuit ruled, whichever came first. The Bureau acted under section 705 of the Administrative Procedure Act, 5 U.S.C. 705, finding that justice required postponement pending judicial review. The order stated that the previous prior-express-written-consent requirements would remain in effect meanwhile, and expressly did not postpone the text-blocking, do-not-call or email-to-text provisions of the same 2023 order.

The sequence matters for anyone reading older commentary. The revised definition was adopted, published, postponed and vacated without a single day in force. The Commission said so itself in the conforming order: "Prior to the court's mandate, the Commission had postponed the effective date of the revised rule and the revised rule had not gone into effect."

What Governs Lead Generation Now

Under Federal Rule of Appellate Procedure 41(b), the court issued its mandate on April 30, 2025, vacating the rule change as of that date. On July 14, 2025 the Consumer and Governmental Affairs Bureau adopted a ministerial order, DA 25-621, conforming the CFR to the decision, published at 90 FR 42137 and effective August 29, 2025. The Commission found notice and comment unnecessary under 5 U.S.C. 553(b)(B) because the order merely implemented a mandate from which it lacked discretion to depart.

That order reinstated the earlier text of 47 CFR 64.1200(f)(9). As reinstated, prior express written consent means a written agreement bearing the signature of the person called that clearly authorizes the seller to deliver advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice, and identifies the telephone number to which they may be delivered. The agreement must carry a clear and conspicuous disclosure that signing authorizes such calls and that signing is not a condition of purchasing any property, goods or services. Electronic and digital signatures count where valid under applicable federal or state contract law. Nothing in that text speaks to how many sellers one agreement may name, or to the subject matter of the calls.

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