Tcpa Modifications, Set For Today, Struck Down By Appeals Court

Real estate agents are in the clear when it comes to dealing with changes to the Telephone Consumer Protection Act (TCPA) thanks to a last-minute ruling by the Eleventh Circuit Court of Appeals late Friday night. 

The Federal Communications Commission (FCC) first established that companies and individuals sending marketing calls or texts must have “prior express written consent” before issuing a call or a text in 2012. 

In December 2023, the FCC revised the definition of “prior express consent” in its “one-to-one” rule, so that consent must be given to only one entity at a time, and that the subject matter of the calls must be logically and topically associated with the interaction that prompted the consent. 

On Friday, the Insurance Marketing Coalition filed a petition for review of the rule, asking it to examine the amendments to the definition of “prior express written consent.” This prompted the FCC to announce that it was postponing the rule from going into effect by one year, noting that additional time was needed to conduct a judicial review of the rule. 

In their unanimous opinion, the Eleventh Circuit court found that the FCC exceeded its statutory authority under the TCPA because the new consent restrictions in the Rule “impermissibly conflict with the ordinary statutory meaning of ‘prior express consent.’”

In its opinion, the Eleventh Circuit court noted that how “prior express consent” is used in TCPA only requires a consumer to to “clearly and unmistakably” state that they are willing to receive the robocall, and that it does not require the consumer to give the marketer one-to-one consent. Additionally, the appeals court noted that “prior express consent” says nothing about the consumer’s consent being limited only to calls that are “logically and topically associated with the interaction that prompted the consent.”

“[W]hether a consumer can be presumed to consent to robocalls in a particular situation says nothing about whether a consumer has in fact consented to robocalls in that situation,” the ruling stated. “As long as the consumer clearly and unmistakably states, before receiving the robocall, that he is willing to receive the robocall, he has given prior express consent under the TCPA.”

For the real estate industry, this means that nothing changes, but for the Federal Communications Commission, this means that they are back to square one.