The 11th Circuit Federal Court of Appeals heard oral arguments today in a case brought by the Insurance Marketing Coalition (IMC) against the Federal Communications Commission (FCC) regarding the FCC's new 1:1 consent rules under the Telephone Consumer Protection Act (TCPA), which are currently set to become effective on January 27, 2024. The arguments focused on the FCC's rule requiring consumers to give consent to receive marketing robocalls on a one-to-one basis, for each individual company, and that this consent must be logically and topically related to the website where the consent was given.

Arguments were presented before a three judge federal appellate panel in Atlanta that included Judge Lisa Branch, Robert J. Luck, and Judge Barbara Lagoa.  Notably, all three judges were appointed to the Eleventh Circuit by President Trump and all are members of the conservative Federalist Society.  

A key point of contention was whether the FCC was implementing or restricting the right to consent. Judge Luck, in particularly, pressed the FCC's counsel, was implementing the TCPA’s requirement for prior express written consent or whether, in fact, the FCC’s decision went further and restricted a person’s right to offer their consent to received desired communications.  

The FCC's counsel argued that it was reasonable for the FCC to require consumers to check a box for each company it wanted to receive autodialed or prerecorded calls from.  IMC's counsel argued that under common law and prior 11th Circuit precedent, a single checkbox could to be used to collect consent on behalf of multiple entities simultaneously.

Overall Tone of the Oral Argument

The judges seemed particularly interested in the statutory authority argument, particularly in light of the Supreme Court’s decision last term in Loper Bright, which curtailed deference to administrative agencies.  The judges were clearly struggling about how to draw the line between an agency’s authority to implement regulations and and when an agency goes too far and restricts certain actions that are otherwise lawful. On the whole, the panel reflected hostility to the FCC’s 1:1 rule, at one point suggesting that while the FCC acted with good intention it perhaps needed to go back to Congress for broader authority if it wanted to restrict the manner in which consumers could be asked to provide their consent.

Potential Outcomes

The court took the case under submission, indicating a decision will be forthcoming. It is likely that the Court will take some action before January 27, 2024 in order to help businesses understand whether they must comply with the FCC’s 1:1 consent rule when it is scheduled to become effective.  If the judges need more time to finalize an opinion, the court could stay the FCC’s order temporarily until it finalizes its opinion.

Based on the oral arguments, the court's decision will likely hinge on its interpretation of the FCC's statutory authority, the meaning of "prior express consent", and whether the rule is an implementation of the law or a restriction of a consumer's right. The court's decision could have significant implications for ecommerce businesses who desire to collaborate with other businesses to collect consent from consumers to send auto-dialed text messages or use artificial or prerecorded voices.