Our regular readers will no doubt be familiar with the one-to-one-consent and logically-and-topically-related requirements the FCC (under the prior administration) had tried to impose as a way to close what it had described as a “lead generator loophole.” On Friday, the FCC (now under a new administration) postponed the effective date of the rule, the validity of which was still being reviewed by the Eleventh Circuit Court of Appeals. Later that day, the Eleventh Circuit issued its ruling in that appeal, finding that the rule is invalid. As a result, in the absence of further appellate review of that ruling, the proposed rule is no more.
The Eleventh Circuit’s decision should be read by anyone who litigates in this space, or indeed in any space where alleged liability is premised on supposed violations of federal or state regulations. The main question on appeal was whether the FCC had statutory authority to impose the new one-to-one-consent and logically-and-topically-related requirements. The Eleventh Circuit found that it did not, as the FCC only has statutory authority to “implement” the TCPA, and the plain language of the TCPA “requires only ‘prior express consent’ — not ‘prior express consent’ plus.” Opinion at 14. As the Eleventh Circuit explained, “implement” means “to complete,” “perform” and “carry into effect,” not to “alter.” Id.
The question then became whether the new rule’s restrictions were in accord with the ordinary meaning of “prior express consent.” The Eleventh Circuit found that they were not:
The questions we confront are straightforward: First, to give “prior express consent” for telemarketing or advertising robocalls, must a consumer always consent to calls from only one entity at a time (i.e., give one-to-one consent)? And second, can a consumer give “prior express consent” to receive telemarketing or advertising robocalls only when the consented-to calls are “logically and topically associated with the interaction that prompted the consent”? The answer to both questions is no, and the additional “prior express consent” restrictions thus fail.
Id. at 15 (citations omitted). As for the one-to-one-consent requirement, it explained as follows:
[O]ur 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. One-to-one consent is not required. Because the one-to-one-consent restriction attempts to alter what we have said is the ordinary common law meaning of “prior express consent,” the restriction falls outside the scope of the FCC’s statutory authority to “implement” the TCPA.
Id. at 18 (citations omitted). It also flatly rejected the argument that the rule is “necessarily lawful” because it is “good policy.” Id. at 20. Even if that were true, the court explained, “[a]textual good policy cannot overcome clear text.” Id.
As for the logically-and-topically-related requirement, the court found that it also “impermissibly alters what it means to give ‘prior express consent.’” Id. at 21. It explained that “[a]s long as a consumer clearly and unmistakably states, before receiving the robocall, that he is willing to receive the robocall, he has given ‘prior express consent’ under the TCPA.” Id. at 23.
The court closed with this admonition:
In its attempt to “implement” the TCPA, the FCC overstepped statutory boundaries. “Agencies have only those powers given to them by Congress, and ‘enabling legislation’ is generally not an ‘open book to which the agency [may] add pages and change the plot line.’” But changing the plot line is exactly what the FCC tried to do here. “Congress drew a line in the text of the statute” between “prior express consent” and something more burdensome. Rather than respecting the line that Congress drew, the FCC stepped right over it.
Id. at 26 (citations omitted).
If they weren’t already, defendants in TCPA cases would be well advised to give careful thought to whether the regulations that have been invoked against them are consistent with the statute’s plain language and the FCC’s statutory authority to “implement” that plain language.
