If you thought the fourth quarter of the Chiefs and Bills playoff game was exciting, the Eleventh Circuit on January 24 granted a last-minute victory to industry in vacating certain portions of the FCC’s December 2023 Report and Order on the TCPA, commonly known as the order provisions closing the so-called “lead generation loophole” (the “Order”).
The Order—which was supposed to go into effect yesterday (i.e. January 27, 2025)—imposed two heightened requirements that threatened to upend the lead generation industry. First, the Order required businesses to collect individualized, one-to-one consent to make telemarketing or advertising robocalls or robotexts (see #2 in our earlier coverage of the Order). Second, the Order provided that consented-to telemarketing or advertising robocalls and robotexts “must be logically and topically associated with the interaction that prompted the consent.”
Such new requirements essentially required a total overhaul of the lead generation industry, which had typically involved lead generation companies collecting consent from a consumer to receive calls or texts from a category of unidentified callers (e.g. matched insurance companies selling insurance products), and then providing that phone number to matched sellers so those sellers can contact consumers to sell insurance products.
The Eleventh Circuit vacated the Order’s one-to-one and topical association requirements, finding that the FCC exceeded its statutory authority by pushing consent restrictions that impermissibly conflict with the TCPA’s “prior express consent” requirement. Although the Eleventh Circuit did not rule on the legality of the FCC’s prior expansion of the TCPA’s “prior express consent” requirement to include certain elements of what the FCC’s TCPA regulations refer to as “prior express written consent” (such as a signature requirement that the FCC regulations have long required, prior to issuance of the Order), the Eleventh Circuit held that the Order’s additional heightened obligations effectively required “prior express consent plus,” which in turn went beyond the plain language of the statute.
After finding that the FCC had violated the Administrative Procedure Act in issuing these rules in the Order, the Eleventh Circuit vacated that portion of the Order, rendering those rules invalid. (Indeed, the FCC had itself sought to stay enforcement of the Order by 12 months, but the Eleventh Circuit’s decision effectively rendered the Order invalid, and thus any stay was moot.)
So, does that mean businesses are free to capture one consent for dozens and even hundreds of sellers? Not necessarily. The Eleventh Circuit made clear that consent would have to be clear and unmistakable, so while the decision gave the industry a tremendous victory, ambiguous consent can still form the basis of costly TCPA litigation. Businesses in the lead generation ecosystem can breathe a sigh of relief, and like the Chiefs, take a victory lap.
