The Eleventh Circuit vacated the Federal Communication Commission’s (“FCC”) 2023 rule interpreting the meaning of “prior express consent” under the Telephone Consumer Protection Act (“TCPA”) because the rule impermissibly conflicted with the ordinary statutory meaning of “prior express consent.” Insurance Marketing Coalition Limited v. FCC, 127 F.4th 303 (11th Cir. 2025).
Insurance Marketing Coalition Limited (“IMC”) challenged the FCC’s 2023 legislative rule interpreting the phrase “prior express consent” as used in the TCPA. The TCPA prohibits calls made “using any automatic telephone dialing system or an artificial or prerecorded voice” without “the prior express consent of the called party.” 47 U.S.C. § 227(b)(1)(A), (B). Congress empowered the FCC to prescribe regulations to implement the TCPA. In 2012, the FCC promulgated a rule that robocalls and robotexts that include an advertisement or constitute telemarketing must be accompanied by “prior express written consent.” (Emphasis added.) In 2023, the FCC promulgated a new rule that modified its 2012 definition to create two new restrictions. First, under the 2023 rule, a party could no longer authorize more than one identified seller at time to make telemarketing or advertising calls. Second, under the 2023 rule, consented-to telemarketing or advertising robocalls had to be logically and topically associated with the interaction that prompted the consent. These two restrictions would apply regardless of the facts of a particular case.
In an opinion written by Judge Branch and joined by Judges Luck and Lagoa, the Eleventh Circuit held that the FCC exceeded its statutory authority under the Administrative Procedures Act (“APA”) by imposing restrictions that impermissibly conflicted with the ordinary statutory meaning of “prior express consent” under the TCPA. The court explained that the TCPA requires “only” “prior express consent,” not “prior express consent” plus. The FCC’s power to prescribe regulations to implement the TCPA’s prohibition on unconsented-to robocalls, the court held, does not allow the FCC to alter the specific choices that Congress made. The FCC’s implementation power only gives the FCC authority to “reasonably define” the TCPA’s consent provisions. The court analyzed the common-law concept of consent to interpret the meaning of “prior express consent.” Express consent, the court explained is consent that is clearly and unmistakably stated. Because a consumer could clearly and unmistakably consent to telemarketing or advertising robocalls from multiple entities, the court held that the 2023 rule exceeded the FCC’s statutory authority. Similarly, because a consumer could clearly and unmistakably provide consent to receive calls with no logical or topical relationship to the call being consented to, the court held that the 2023 rule exceeded the FCC’s statutory authority. Because the 2023 rule impermissibly exceeded the FCC’s statutory authority, the Eleventh Circuit vacated the rule.