Telephone and Texting Compliance News: Litigation Update — One-to-One Consent Not Dead Yet

As we previously reported, at the eleventh hour, the Court of Appeals for the Eleventh Circuit vacated the Federal Communications Commission’s (FCC) much-anticipated one-to-one consent rule in Insurance Marketing Coalition Limited v. FCC,[1] holding that the agency exceeded its statutory authority under the Telephone Consumer Protection Act (TCPA). The court’s decision was a major victory for businesses that rely on or engage in lead generation.

However, the legal saga might not be over. On February 19, 2025, a motion to intervene[2] was filed, challenging the panel’s decision vacating the one-to-one consent rule.

Who Is Seeking to Intervene and Why?

The proposed intervenors include four small business owners and the National Consumers League, a well-known advocacy organization. The proposed intervenors seek to intervene so they can ask for a rehearing “on the panel’s holding that the portion of the One-to-One Rule requiring consent for one entity at a time exceeds the FCC’s authority.”[3]

They argue that “the panel’s decision ignored both the purpose of the TCPA (to stop unwanted calls), and the FCC’s determination that the Rule was necessary to accomplish that purpose.”[4] They claim their intervention is appropriate because they “have a strong interest in seeing the Rule in effect” to “reduce the costly burden of unwanted telemarketing calls.”[5]

According to their motion, “with the change in presidential administration, the FCC is no longer defending the Rule and is unlikely to seek rehearing of that decision.”[6] They contend that “without government defense of the Rule, the interests of Proposed Intervenors in seeing the Rule in place will no longer be protected at all — much less adequately.”[7]

As of the date of this publication, it remains to be seen whether the Eleventh Circuit will allow intervention.

What This Means for Businesses

The motion to intervene introduces new uncertainty for companies that engage in or rely on lead generation. In light of that uncertainty, businesses should consider the following:

• Monitor Further Litigation – If the bid to intervene succeeds, TCPA compliance obligations could shift. Staying ahead of evolving litigation outcomes and regulatory changes will be essential to mitigating risks and ensuring compliance.
• Strengthen Compliance Practices – Businesses should continue to obtain clear, documented consumer consent to mitigate litigation risks. Prior express written consent remains the gold standard for risk mitigation.
• Prepare for Possible State-Level Action – Even if the FCC is curbed, state regulators could pursue their own stricter consent requirements. Companies should assess their multi-state compliance strategies to ensure they remain ahead of state-level changes.

Conclusion

The Eleventh Circuit’s decision was a major victory for businesses, but the request for intervention ensures that the fight over one-to-one consent is not over. Though a turnaround in favor of one-to-one consent may be unlikely, companies should remain proactive in monitoring and adapting their TCPA compliance strategies as the area develops.

We will continue to monitor this case and provide updates on any developments that may impact industry practices.

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