State Attorneys General Push Back Against Landmark Ruling on FCC’s 1:1 Consent Rule
The Ecommerce Innovation Alliance continues to monitor developments following the Eleventh Circuit Court of Appeals' recent decision to overturn key components of the FCC's 2023 Order, including the controversial "one-to-one consent" rule governing robocalls and robotexts. As previously reported, this ruling was a significant win for businesses utilizing lawful means to obtain consumer consent for telemarketing.
However, we are now seeing a concerted effort to challenge this decision. A coalition of 28 state Attorneys General has filed an amicus brief in support of a proposed petition for rehearing en banc. The bipartisan group of Attorneys General from the District of Columbia, Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New York, North Carolina, Ohio, Oregon, Rhode Island, South Carolina, South Dakota, Utah, Vermont, Virginia, Washington, West Virginia, and Wisconsin have collectively filed the brief. This action indicates a desire to reinstate the FCC's one-to-one consent mandate, which the Eleventh Circuit found to be an overreach of the agency’s statutory authority under the Telephone Consumer Protection Act (TCPA).
These Attorneys General argue that the FCC's one-to-one consent rule is a "critical nationwide enforcement tool" that complements their own efforts to combat illegal robocalls. They believe the rule prevents lead generators from "harvesting and reselling consumer contact information."
The Ecommerce Innovation Alliance supports efforts to prevent the reselling of consumer contact information. Such a practice defies consumer expectations and is not consistent with existing interpretations. However, despite this framing in the Attorney Generals’ amicus brief, that’s not precisely what the FCC 1:1 rule did. Instead, the FCC's one-to-one consent rule as written represented an unwarranted reinterpretation of "prior express written consent" that would have prevented consumers from being able to voluntarily consent to receive information from multiple businesses simultaneously, hindering legitimate businesses from conveniently obtaining consent from consumers who intentionally provided their contact information to multiple businesses. The rule would have made it unlawful for two businesses that were not “logically and topically related” to collaborate on joint list growth efforts, and opening up a new area of likely litigation as companies and plaintiff’s attorneys disputed whether or not companies were logically and topically related to one another. As we stated previously, consumers have long been able to consent to receive messages from multiple entities simultaneously, a common and beneficial practice in various online interactions, and this freedom to contract should be maintained.
It is exceptionally rare for a federal court of appeals to grant rehearing en banc, particularly when the original decision by the 3 judge panel was unanimous. And, even if rehearing is granted, that does not mean that the court setting en banc will reach a contrary conclusion. Chances are then that the 11th Circuit will not reverse the unanimous decision reached by Judges Branch, Luck, and Lagoa. However, if the decision is not reversed, we may see efforts to challenge the outcome at the Supreme Court or for states to start including a one-to-one consent rule in their own state telemarketing laws. As such, we will continue to monitor this situation closely and advocate for a regulatory environment that protects consumers without unduly restricting legitimate business practices. Staying informed about these legal developments is crucial for all ecommerce businesses.
