On February 19, the National Consumers League (NCL) and four small business owners filed a motion to intervene in support of the Federal Communications Commission (FCC) and the United States in the case of Insurance Marketing Coalition Ltd. v. FCC. This motion seeks to challenge the panel’s January 24, 2025 decision that vacated the FCC’s 2023 Order, known as the One-to-One Rule.
Under the Telephone Consumer Protection Act (TCPA), sellers and telemarketers are prohibited from making certain telemarketing calls using an automatic telephone dialing system (ATDS) or artificial or prerecorded voice messages without “prior express consent.” As discussed here, in December 2023, the FCC issued an order adopting rules aimed at closing what it termed the “lead generator loophole.” The FCC objected to lead generators using a single webform to obtain prior express written consent for a list of marketing partners. The FCC also objected to webforms that obtained broad consent for marketing calls about a wide-range of products and services. The 2023 order adopted a new definition of “prior express written consent” that would have prohibited consumers from giving consent to receive marketing calls from more than one company at a time or about products and services that were not “logically and topically associated with” those promoted on the website. The Eleventh Circuit held that the FCC exceeded its authority under the TCPA because the consent restrictions conflicted with the ordinary meaning of “prior express consent.”
The proposed intervenors argue that the One-to-One Rule would dramatically decrease the prevalence of unwanted telemarketing calls, which impose real costs on small businesses and advocacy organizations like the NCL. The small business owners involved in the motion have allegedly experienced significant disruptions due to unwanted telemarketing calls. These calls interfere with their ability to conduct business, reach clients, and manage their operations efficiently. They further allege that the costs associated with screening and managing these calls are substantial. According to NCL, the organization expends considerable resources in assisting victims of scam calls and advocating for regulatory changes. The One-to-One Rule would reduce the need for such extensive advocacy and support efforts.
The motion highlights that the FCC, under the current administration, is unlikely to seek rehearing of the panel’s decision. The proposed intervenors cite this change in leadership as underscoring their need to step in and defend the rule. The proposed intervenors assert that their interests will no longer be protected if the FCC does not seek rehearing, and contend they have a strong interest in seeing the rule in effect.
Notably, the proposed intervenors are contesting the panel’s holding that the FCC exceeded its authority as it relates to the One-to-One Rule but are not seeking rehearing on the panel’s ruling related to the “FCC order providing that consumer consent is consent only as to calls about matters ‘logically and topically’ related to the interaction that prompted the consent.”
Troutman Pepper Locke will continue to monitor this litigation and provide updates.
