• The Eleventh Circuit vacated the FCC’s new “One Seller” Rule, finding the agency exceeded its statutory authority under the TCPA.

• Had it been upheld, the new rule would have required telemarketers to obtain consent for calls one seller at a time, thereby limiting the number of calls protected by any given consent.

• The Eleventh Circuit’s decision clarifies (and limits) the FCC’s rulemaking authority to implement the TCPA moving forward, particularly as to the conditions the FCC may put on consents to call.

In 2023, the FCC issued an order intended to prevent “lead generators” from obtaining broad consent for “marketing affiliates” to call consumers. Specifically, the 2023 order — known as the “One Seller Rule” or “1:1 Rule” — amended the FCC’s 2012 definition of “prior express written consent” (which modified the TCPA’s “prior express consent” requirement) such that consent: (1) can only be obtained “one seller” at a time; and (2) only applies to calls whose subject matter is “logically and topically associated with the interaction that prompted the consent.” This rule has been a matter of significant controversy and regulatory proceedings, and its effective date has been repeatedly delayed.

Pursuant to the Hobbs Act, Insurance Marketing Coalition Limited (IMC) sought review of this 2023 order to the Eleventh Circuit Court of Appeals, arguing that the TCPA’s statutory language does not empower the FCC to place such conditions on consent. IMC argued that the TCPA requires only “prior express consent” and does not contemplate a “one seller” requirement.

The Eleventh Circuit agreed. Under the TCPA, the FCC only has the power to “implement” the statute, not the authority to “alter” it, and therefore cannot impose requirements that conflict with or go beyond the ordinary meaning of the statute. See 2025 WL 289152, at *6. With this basis, the court concluded that the new “one seller” requirements conflict with the statute’s ordinary language because they essentially require callers to obtain “‘prior express consent’ plus.” See id. at *6-9. Thus, the Eleventh Circuit held, the FCC exceeded its statutory authority to “implement” the TCPA by imposing restrictions to the “prior express consent” requirement not prescribed by Congress. See id. The court vacated the 1:1 Rule and remanded the matter back to the FCC for further proceedings. See id. at *10.

The IMC decision has limited direct impact on TCPA litigants, as it only concerns the recently issued 1:1 Rule. It should, however, be viewed within the context of the judiciary’s recent movement away from agency deference. Last year, in Loper Bright Enterprises v. Raimondo, 608 U.S. 369 (2024), the Supreme Court overturned the decades-old Chevron doctrine, which instructed courts to defer to agency interpretations of ambiguous statutes. And just last month, the Supreme Court heard oral argument in McLaughlin Chiropractic Associates, Inc. v. McKesson Corporation, No. 22-15710, 2023 WL 7015279 (9th Cir. Oct. 25, 2023), cert. granted, --- F.4th ---, 2024 WL 4394119 (U.S. Oct. 4, 2024) (No. 23-1226), a case in which the Court could issue a decision that would empower federal district courts to conduct the same Hobbs-like review performed by the Eleventh Circuit in IMC — but without the same time and procedural limitations. This would open the door for TCPA defendants to challenge a host of FCC regulations that have interpreted the TCPA — including the FCC’s 2012 order requiring “prior express written consent” for advertising and telemarketing calls.

Whatever its long-term repercussions, the IMC decision struck down the 1:1 Rule, providing some relief to businesses engaging in telemarking. However, the TCPA and equivalent state laws, which are ever evolving, still require exacting compliance. To avoid violations and litigation, it is best practice to maintain strong consent procedures.