Varnum Viewpoints:
The Federal Communications Commission’s (FCC) proposed one-to-one consent rule under the Telephone Consumer Protection Act (TCPA) was recently invalidated by the 11th Circuit Court of Appeals. This ruling was issued immediately after the FCC announced a delay in the rule’s implementation until January 2026, or until the 11th Circuit completed its judicial review. For businesses involved in direct-to-consumer marketing, the future of the rule remains uncertain, with its timing and potential enforcement dependent on the regulatory direction of the new Administration’s FCC.
On January 24, 2024, FCC delayed the effective date of the TCPA one-to-one consent rule until January 26, 2026, or until the Eleventh Circuit concludes its judicial review of the rule and—if the court upholds the rule—the FCC issues a Public Notice specifying a sooner date (within 90 days of the court’s decision).
Hours later, the Eleventh Circuit issued its ruling, invalidating the rule on the grounds that the FCC had exceeded its statutory authority in its interpretation of “prior express consent.” The TCPA requires companies to obtain “prior express consent” before robocalling consumers. However, the FCC’s 2023 one-to-one consent rule expanded this requirement by mandating entity-specific consent and requiring that the subject matter of each call be logically and topically related to the interaction that prompted the consent. In striking down the rule, the Eleventh Circuit noted: “Rather than respecting the line that Congress drew, the FCC stepped right over it.”
The practical implications of this decision remain pending, as the FCC must now determine whether to appeal the ruling, substantially revise the rule, or pursue an alternative approach. Notably, the current FCC appears to have adopted a distinct regulatory posture from its predecessor. In its delay order, the Commission emphasized the substantial implementation burden on industry stakeholders while acknowledging limited public interest harms associated with postponement.
Presently, the one-to-one consent rule will remain ineffective until at least January 2026, or until the FCC issues a Public Notice addressing the rule’s effective date—in the event that the rule withstands additional legal challenges. The FCC is expected to announce its intended course of action in the near future, whether that involves pursuing an appeal, undertaking rule revision, or withdrawing the initiative altogether.
Contact a member of Varnum’s Data Privacy and Cybersecurity Practice Team to discuss how these changes impact your business and how to help ensure compliance.
