TCPA litigation, like spring flowers, is in full bloom this season. Over the past several months, major decisions have come down related to the FCC’s one-to-one consent rule (which we covered in our last update) as well as other issues that continue to delineate claims under the TCPA. We summarize here developments since our last update, listed in alphabetical order by topic area.
Class Certification: In Barnes v. Coca-Cola Co., 2025 WL 1027431 (E.D. Cal. Apr. 7, 2025), the district court granted the defendant’s motion to strike the class actions allegations because the defined class was overbroad. Plaintiff’s proposed class included “every person in the United States who has ever received a telephone call from Coca-Cola.” The court highlighted that the proposed class was temporally unbounded and did not limit itself to calls made with a pre-recorded voice or without consent of the receiver. Therefore, the class as a whole encompassed both persons injured under the TCPA and persons who suffered no injury at all and the court refused to allow a facially overbroad class to move forward. Beyond class certification, the court also dismissed claims for treble damages because the plaintiff failed to allege that the calls received were telemarketing or advertising.
Consent: In Ins. Mktg. Coalition Ltd. v. Fed. Commun. Comm’n,127 F.4th 303 (11th Cir. 2025), the Eleventh Circuit vacated the long anticipated one-to-one consent rule issued by the FCC three days before its scheduled effective date. As discussed in our last blog post, the one-to-one consent rule would require prior express consent to be obtained separately for each company seeking to use such consent. This rule would have eliminated a marketer’s ability to utilize consent given to an affiliated company absent direct consent from that affiliate.
Applying the Supreme Court’s recent precedent Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), the Eleventh Circuit held that that the rule conflicted with the TCPA’s definition of “prior express consent.” The lack of a definition within the TCPA meant the court had to compare the rule to the ordinary statutory meaning of “prior express consent.” The court noted that the ordinary meaning of the term was broad and consistently has been upheld to encapsulate consent by more than one entity at a time. Therefore, requiring one-to-one consent would restrict the term in a manner antithetical to the ordinary understanding and past case law defining “prior express consent.” Ultimately, the FCC exceeded its statutory authority by proposing the one-to-one consent rule, according to the Eleventh Circuit.
After this ruling, the National Consumer League (“NCL”) and four small businesses petitioned the Eleventh Circuit to revisit its decision and filed briefs in support of their positions. In addition, 27 state attorneys general, including from Washington, D.C., have filed an amicus brief with the court asking for reconsideration. New FCC Chair Brendan Carr previously expressed approval of the one-to-one consent rule, but on April 4, 2025, the FCC filed an opposition brief to the intervention led by the NCL. The FCC urged the Eleventh Circuit to not revisit its decision because the agency did not wish to defend the rule. Overall, it remains unclear how the court will proceed with the intervention and rehearing arguments, especially given the lack of support by the FCC.
Damages: In Koeller v. Seemplicity Sec. Inc., 2024 WL 4751306 (E.D. Mo. Nov. 12, 2024), the district court dismissed claims for treble damages because the plaintiff failed to allege that the defendant knowingly or willfully violated the TCPA. The plaintiff received phone calls to his personal phone from the defendant cybersecurity company soliciting him to purchase its products. The plaintiff alleged that he never consented to the calls and was also on the do-not-call registry. However, the plaintiff failed to allege facts that the defendant knew the plaintiff was on a do-not-call list or that the defendant purposefully called the plaintiff’s residential telephone number that was registered. Therefore, without sufficient alleged facts showing a knowing or willful violation of the TCPA, the plaintiff would not be entitled to treble damages.
Solicitation: In a split decision, the court in Hulce v. Zipongo Inc., 2025 WL 829603 (7th Cir. Mar. 17, 2025), held that calls and text messages to encourage the use of free services did not meet the definition of “telephone solicitation” under the TCPA. The defendant was a company that provided free nutrition consultation services to members of healthcare plans. The defendant texted and called the plaintiff to offer these free services. In its holding, the court emphasized that the definition of “telephone solicitation” requires one party to encourage the other to purchase goods or services. Without some form of required payment, merely encouraging someone to use free services did not fall within the definition of “telephone solicitation” and could not result in a violation of the TCPA.
Standing: In Morris v. Lincare, Inc., 2025 WL 605616 (M.D. Fla. Feb. 25, 2025), the district court held that the issue of consent under the Health Care Rule could not serve as a basis to challenge the plaintiff’s standing to bring a claim under the TCPA. Under the Health Care Rule, prior express consent is not required before a patient receives calls or texts regarding their health. The defendant, a medical supply company, argued the plaintiff did not have standing because its robocalls fell under the Health Care Rule and consent was not required. However, the court flatly rejected this argument and reaffirmed prior precedent holding that the issue of consent is not a basis to challenge a plaintiff’s constitutional standing under the TCPA. Instead, the issue of consent and whether it is required is best addressed on the merits during the summary judgment phase. The fact that the plaintiff received unwanted prerecorded calls was enough to establish an injury and constitutional standing.
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