The Federal Communications Commission is pushing the Telephone Consumer Protection Act’s one-to-one consent requirement to next year, due to an appeals court ruling questioning the FCC’s definition of prior express consent.
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The Federal Communications Commission is delaying the Telephone Consumer Protection Act (TCPA)’s one-to-one consent requirement until 2026, thanks to a court ruling against the commission on Friday.
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The U.S. Court of Appeals for the Eleventh Circuit ruled in favor of the Insurance Marketing Coalition (IMC), which filed a petition in 2024 against the FCC over the TCPA’s prior express consent requirements.
In the Act, the FCC requires marketers to get express written consent from consumers before calling, texting, or using auto-dialers to send a prerecorded message. The FCC also axed the idea of broad consent for these calls, with the Act noting that consumers must provide written consent for each company that wants to contact them. Once a consumer gives consent to a company, the TCPA also says any future calls, texts, or automated messages must be “logically and topically” related to the original reason they consented.
The IMC argued the FCC’s prior express consent requirement “improperly differentiated” between telemarketing and advertising calls and non-telemarketing and non-advertising calls. The IMC also said the TCPA’s definition of prior express consent conflicts with the longstanding application of the rule and gives conflicting guidance on the requirement that all calls to a consumer must be “logically and topically” related.
“By this Order, we postpone the effective date for revisions to the [Second Text Blocking Report and Order] of the Commission’s rules by 12 months, to January 26, 2026, or until the date specified in a Public Notice following a decision from the court reviewing a challenge to the new rule on the petition filed by the Insurance Marketing Coalition (IMC), whichever is sooner,” Consumer and Governmental Affairs Bureau Acting Chief Eduard W. Bartholme III said in an order on Friday. “We take this action pursuant to our authority under section 10(d) of the Administrative Procedure Act because we find that justice requires postponement of the effective date pending judicial review of the adopted rule.”
“Particularly given the advanced stage of the pending judicial proceeding, it is in the interest of justice to provide a limited postponement of the effective date of the rule to avoid imposing new burdens on parties while the court is adjudicating IMC’s challenge to the rule and to avoid subjecting texters and callers acting in good faith to the risk of having to defend themselves against private suits seeking statutory damages for a period in which the rule is still undergoing judicial review,” he added. “Further, we find that providing additional time may facilitate the industry’s compliance with the rule if the court upholds it.”
“After careful review and with the benefit of oral argument, we agree with IMC that the FCC exceeded its statutory authority under the TCPA because the 2023 Order’s new consent restrictions impermissibly conflict with the ordinary statutory meaning of ‘prior express consent,’” court documents read. “Accordingly, we grant IMC’s petition for review, vacate Part III.D of the 2023 Order, and remand for further proceedings.”
Although the FCC is holding off on the one-to-one consent requirement, that doesn’t mean companies are off the hook.
They’ll still need to get express written consent and provide a “clear and conspicuous” disclosure for robocalls and robotexts — or face steep penalties. In 2023, Keller Williams paid $40 million to settle a cold call class action lawsuit that claimed the franchisor’s agents made unsolicited calls to consumers, including those on the national Do Not Call list.