As we await agency reversals on pro-consumer positions, a decision today from the Eleventh Circuit reminds us that many pro-consumer rules may be eliminated without the Administration doing anything.
In 2023, the FCC issued a rule defining the term “prior express consent” as used in the TCPA, and providing that a consumer’s consent to a robocall will not be effective unless (1) the consumer consents to calls from only one entity at a
time, and (2) the consumer consents only to calls whose subject matter is “logically and topically associated with the interaction that prompted the consent.” While recognizing the statute did not define the term, the Court found that the Rule’s limitations conflict with the common law meaning of “prior express consent” and that the agency thus exceeded its statutory authority.