Summary
The Eleventh Circuit reviewed the Federal Communications Commission's 2023 Order, which imposed new restrictions on what constitutes "prior express consent" for telemarketing and advertising robocalls under the Telephone Consumer Protection Act (TCPA). The court held that the FCC exceeded its statutory authority because the new "one-to-one-consent" and "logically-and-topically-related" restrictions conflict with the ordinary statutory meaning of prior express consent. Accordingly, the court granted the petition for review, vacated the challenged portion of the FCC's order, and remanded the case for further proceedings.
Topics
Practice areas
Questions Presented
- Whether the FCC exceeded its statutory authority under the TCPA by imposing one-to-one-consent and logically-and-topically-related restrictions on prior express consent for telemarketing and advertising robocalls and robotexts.
- Whether Part III.D of the FCC's 2023 Order violated the First Amendment.
- Whether Part III.D was arbitrary and capricious under the APA because it lacked an adequate factual basis, failed to respond meaningfully to material comments, and failed to justify its effects on small businesses.
- Whether vacatur was the appropriate remedy if Part III.D exceeded the FCC's statutory authority.
Holdings
- The FCC exceeded its statutory authority by categorically requiring a consumer to consent separately to robocalls from each individual seller. A consumer may give prior express consent to receive robocalls from multiple entities if the consumer clearly and unmistakably states, before the calls, a willingness to receive them.
- The FCC exceeded its statutory authority by requiring consented-to telemarketing and advertising robocalls to be logically and topically associated with the interaction that prompted consent. Clear and unmistakable prior consent is not categorically invalid merely because the call's subject matter is unrelated to the website or interaction through which consent was given.
- Vacatur and remand were appropriate because Part III.D seriously exceeded the FCC's statutory authority.
Key quotations
“To “implement” means “[t]o complete, perform, carry into effect (a contract, agreement, etc.); to fulfil[l] (an engagement or promise).”” (Opinion at 12-15)
“Thus, our cases show that to give “prior express consent” to receive a robocall, one need only “clearly and unmistakably” state, before receiving the robocall, that he is willing to receive the robocall.” (Opinion at 18)
“The FCC therefore exceeded its statutory authority in redefining “prior express consent” to include the additional “prior express consent” restrictions.” (Opinion at 24)
“In its attempt to “implement” the TCPA, the FCC overstepped statutory boundaries.” (Opinion at 26)
Factual background
Insurance Marketing Coalition Limited is a consortium representing insurance-industry stakeholders, including lead generators, merchants, and consumers. Lead-generation and comparison-shopping websites collect consumer information and obtain consent to contact consumers through affiliated or partner businesses, often selling leads to matched merchants or aggregators. The FCC's 2023 Order restricted consent for telemarketing and advertising robocalls by requiring consent to calls from only one identified seller at a time and limiting calls to subject matter logically and topically associated with the interaction that prompted consent.
Procedural history
The FCC promulgated Part III.D of its 2023 Order, imposing one-to-one and logically-and-topically-related restrictions on prior express consent for telemarketing and advertising robocalls and robotexts. IMC sought review in the Eleventh Circuit, challenging the rule under the TCPA, the First Amendment, and the Administrative Procedure Act. The court granted the petition on the statutory-authority ground, vacated Part III.D, and remanded without reaching the constitutional or arbitrary-and-capricious claims.
Remand instructions
Vacate Part III.D of the FCC's 2023 Order and remand for further proceedings.