Opinion · Court of Appeals for the Eleventh Circuit
Insurance Marketing Coalition Limited v. FCC
Ins. Mktg. Coal. Ltd. v. FCC, 127 F.4th 303 (11th Cir. 2025)
- Type
- Opinion
- Court
- Court of Appeals for the Eleventh Circuit
- Jurisdiction
- Federal
- Date
- 2025-01-24
- Topic
- general
USCA11 Case: 24-10277 Document: 60-1 Date Filed: 01/24/2025 Page: 1 of 26 [PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 24-10277 ____________________ INSURANCE MARKETING COALITION LIMITED, Petitioner, versus FEDERAL COMMUNICATIONS COMMISSION, UNITED STATES OF AMERICA, Respondents. ____________________ Petition for Review of a Decision of the Federal Communications Commission Agency No. CG-02-278 / CG-17-59 / CG-21-402 ____________________ USCA11 Case: 24-10277 Document: 60-1 Date Filed: 01/24/2025 Page: 2 of 26 2 Opinion of the Court 24-10277 Before BRANCH, LUCK, and LAGOA, Circuit Judges. BRANCH, Circuit Judge: Under the Telephone Consumer Protection Act (“TCPA”), those wishing to make a robocall must obtain the called party’s “prior express consent.” 47 U.S.C. § 227(b)(1)(A), (B). An existing regulation promulgated by the FCC in 2012 states that “prior express consent” means “prior express written consent” when the robocall at issue constitutes telemarketing or advertising. 47 C.F.R. § 64.1200(a)(2), (3) (emphasis added); In the Matter of Rules and Reguls. Implementing the Tel.
Citator
Insurance Marketing Coalition Limited v. FCC has been questioned or limited by later authorities: relies on overruled authority: 47 U.S.C. § 227 (invalidated by Barr v. American Assn. of Political Consultants, Inc.). Read them before relying on it. 8 later decisions cite it.
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USCA11 Case: 24-10277 Document: 60-1 Date Filed: 01/24/2025 Page: 1 of 26
[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 24-10277
____________________
INSURANCE MARKETING COALITION LIMITED,
Petitioner,
versus
FEDERAL COMMUNICATIONS COMMISSION,
UNITED STATES OF AMERICA,
Respondents.
____________________
Petition for Review of a Decision of the
Federal Communications Commission
Agency No. CG-02-278 / CG-17-59 / CG-21-402
____________________
USCA11 Case: 24-10277 Document: 60-1 Date Filed: 01/24/2025 Page: 2 of 26
2 Opinion of the Court 24-10277
Before BRANCH, LUCK, and LAGOA, Circuit Judges.
BRANCH, Circuit Judge:
Under the Telephone Consumer Protection Act (“TCPA”),
those wishing to make a robocall must obtain the called party’s
“prior express consent.” 47 U.S.C. § 227
(b)(1)(A), (B). An existing
regulation promulgated by the FCC in 2012 states that “prior
express consent” means “prior express written consent” when the
robocall at issue constitutes telemarketing or advertising. 47 C.F.R. § 64.1200
(a)(2), (3) (emphasis added); In the Matter of Rules and
Reguls. Implementing the Tel. Consumer Prot. Act of 1991, 27 FCC Rcd.
1830, 1831 (2012) (“2012 Order”). 1
At issue here is another sweeping rule affecting only
telemarketing and advertising robocalls and robotexts. 2 Like it did
in 2012, in 2023, the FCC promulgated a legislative rule
interpreting the phrase “prior express consent” as used in the
TCPA. See Second Report and Order, In the Matter of Targeting and
Eliminating Unlawful Text Messages, Rules and Reguls. Implementing
1 The 2012 Order is not at issue in this case.
2 We use the terms “robocalls” and “robotexts” as shorthand for calls and texts
made “using any automatic telephone dialing system or an artificial or
prerecorded voice”—i.e., the calls and texts that the TCPA regulates. See 47 U.S.C. § 227
(b)(1)(A), (B). We note that even though the statute on its face
does not mention text messages, the FCC—by regulation—has interpreted the
word “call” to include text messages. See In the Matter of Rules & Reguls.
Implementing the Tel. Consumer Prot. Act of 1991, 18 FCC Rcd. 14014, 14115
(2003). For the ease of the reader, this opinion primarily uses the term
“robocalls” as a shorthand for “robocalls and robotexts.”
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24-10277 Opinion of the Court 3
the Tel. Consumer Prot. Act of 1991, Advanced Methods to Target and
Eliminate Unlawful Robocalls, 38 FCC Rcd. 12247, 12258–69 (2023)
(“2023 Order”). Part III.D of the 2023 Order states, categorically,
that a consumer cannot consent to a telemarketing or advertising
robocall unless (1) he consents to calls from only one entity at a
time, and (2) he consents only to calls whose subject matter is
“logically and topically associated with the interaction that
prompted the consent.” Id. at 12297
. These two restrictions apply
regardless of any other facts bearing on one’s consent in a particular
case. See id.
Petitioner Insurance Marketing Coalition Limited (“IMC”)
challenges Part III.D of the FCC’s 2023 Order on three grounds.3
First, IMC contends that the FCC exceeded its statutory authority
in issuing the 2023 Order. IMC makes two arguments in support.
It first argues that the 2023 Order impermissibly interprets the
phrase “prior express consent” to mean “two different things.”
That is, IMC asserts that the FCC improperly differentiated
between telemarketing and advertising calls, on one hand, and
non-telemarketing and non-advertising calls, on the other, in
promulgating the two restrictions. IMC also argues that the two
restrictions conflict with the ordinary statutory meaning of “prior
express consent.”
Second, IMC contends that the 2023 Order violates the First
Amendment by “impos[ing] content-based discrimination on
3 Because IMC challenges only Part III.D of the 2023 Order, we address only
that part. All references to the 2023 Order refer to Part III.D.
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4 Opinion of the Court 24-10277
marketing calls” without proper justification. And third, IMC
argues that the 2023 Order is arbitrary and capricious under the
Administrative Procedure Act (“APA”) because it lacks an adequate
factual basis for the new restrictions, fails to respond meaningfully
to material comments, and fails to justify its impacts on small
businesses.
After careful review and with the benefit of oral argument,
we agree with IMC that the FCC exceeded its statutory authority
under the TCPA because the 2023 Order’s new consent restrictions
impermissibly conflict with the ordinary statutory meaning of
“prior express consent.” Accordingly, we grant IMC’s petition for
review, vacate Part III.D of the 2023 Order, and remand for further
proceedings.
I. Background
We divide this background part into three sections. The first
section describes IMC and the lead-generation industry—the
industry most affected by the 2023 Order. The second section lays
out the relevant statutory and regulatory frameworks. And the
third section describes in more detail the 2023 Order.
A. Lead Generation and IMC
“IMC is a consortium of over twenty entities[] representing
a cross[-]section of insurance industry stakeholders.” IMC’s
mission is to “help protect the best interests of consumers by,
among other things, promoting compliant[] best practices in
insurance marketing and services.” IMC’s members include
(1) lead generators that employ lead-generation techniques,
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24-10277 Opinion of the Court 5
(2) merchants that rely on lead generators to promote their goods
and services, and (3) consumers who rely on lead generators to
compare products and services. IMC seeks review of Part III.D of
the FCC’s 2023 Order on behalf of its members.
“Lead generation [also known as ‘performance marketing’]
is the process of identifying and cultivating individual
consumers . . . potentially interested in purchasing a product or
service.” Lead generation’s goal is to connect the identified
consumers with companies that sell the product or service the
consumers are interested in purchasing. Identified consumers and
their contact information are known as “leads.” The companies
that do the collecting are known as “lead generators.” Lead
generators often sell leads to the “end-buyer merchants” that sell
the product or service the consumer is interested in purchasing.
They also often sell the leads to “lead aggregators,” or
“intermediaries that take in leads collected by multiple” lead
generators and “prepare them for sale to their clients—merchants
or other aggregators.”
Lead generation is common in the context of comparison
shopping, which—in IMC’s words—“provide[s] a one-stop means
of comparing options for health insurance, auto loans, home
repairs, and other services.” Broadly speaking, lead-generating,
comparison-shopping websites operate as follows. Consumers
visit the comparison-shopping website and enter information
about themselves and the product they want to purchase. The
consumers consent to be contacted by the website’s partners and
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6 Opinion of the Court 24-10277
affiliates that offer the product or service the consumers seek. The
website then runs its algorithm based on the consumers’
information and “matches” the consumers with companies that
offer what the consumers want. The website then sells the
“leads”—i.e., the consumers’ information—to the matched
affiliates so that the affiliates can robocall or robotext the
consumers with offers, quotes, or some other message.
B. Statutory and Regulatory Background
The 2023 Order is a regulation interpreting the phrase “prior
express consent” in the TCPA. Congress enacted the TCPA in
response to a “torrent of vociferous consumer complaints about
intrusive robocalls.” Barr v. Am. Ass’n of Pol. Consultants, Inc., 591 U.S. 610, 614
(2020) (plurality opinion). With some exceptions not
relevant here, the TCPA prohibits calls made “using any automatic
telephone dialing system or an artificial or prerecorded voice”
without “the prior express consent of the called party.” 47 U.S.C. § 227
(b)(1)(A), (B). The statute does not define “prior express
consent.” See id.
Congress gave the FCC the authority to “prescribe
regulations to implement” the TCPA. Id.
§ 227(b)(2). Congress
also gave the FCC the authority to exempt certain calls from the
TCPA’s prohibitions. Id. § 227(b)(2)(B), (C). The FCC’s TCPA
regulations are codified at 47 C.F.R. § 64.1200
and represent
decades of agency action. Generally, with some exceptions not
relevant here, the regulations prohibit robocalls and robotexts
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24-10277 Opinion of the Court 7
made without the “prior express consent of the called party”—just
like the TCPA. See 47 C.F.R. § 64.1200
(a)(1).
The FCC has determined that the meaning of “prior express
consent” is different for different types of calls. In 2012, the FCC
declared by regulation that robocalls and robotexts that “include[]
or introduce[] an advertisement or constitute[] telemarketing”
must be accompanied not simply by prior express consent, but by
“prior express written consent.” Id.
§ 64.1200(a)(2), (3); see also 2012
Order, 27 FCC Rcd. at 1838. 4 That is, the FCC interpreted “prior
express consent” in the TCPA to mean “prior express written
consent” in the context of telemarketing and advertising robocalls.
See 2012 Order, 27 FCC Rcd. at 1838. 5
The regulations define “prior express written consent” as:
an agreement, in writing, bearing the signature of the
person called that clearly authorizes the seller to
deliver or cause to be delivered to the person called
advertisements or telemarketing messages using an
automatic telephone dialing system or an artificial or
4 Under the regulations, “[t]he term advertisement means any material
advertising the commercial availability or quality of any property, goods, or
services.” 47 C.F.R. § 64.1200
(f)(1). “The term telemarketing means the
initiation of a telephone call or message for the purpose of encouraging the
purchase or rental of, or investment in, property, goods, or services, which is
transmitted to any person.” Id.
§ 64.1200(f)(13).
5 For other robocalls—such as informational calls about “bank account
balance[s], credit card fraud alert[s], package deliver[ies], and school
closing[s]”—only “prior express consent” is required. 2012 Order, 27 FCC
Rcd. at 1838; 47 C.F.R. § 64.1200
(a)(1).
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8 Opinion of the Court 24-10277
prerecorded voice, and the telephone number to
which the signatory authorizes such advertisements
or telemarketing messages to be delivered.
47 C.F.R. § 64.1200
(f)(9). The written agreement must “include a
clear and conspicuous disclosure informing” the signing party that
he consents to telemarketing or advertising robocalls and
robotexts. Id.
§ 64.1200(f)(9)(i)(A).
C. The 2023 Order
The 2023 Order interprets “prior express consent” in the
TCPA to include—on top of the 2012 Order’s written-consent
restriction—two new restrictions for telemarketing and advertising
robocalls.6
The first restriction on what it means to give “prior express
consent” declares that a called party can “authorize[] no more than
one identified seller” at a time to make telemarketing or advertising
robocalls to the called party. 2023 Order, 38 FCC Rcd. at 12297
(amending 47 C.F.R. § 64.1200
(f)(9)). In other words, a called party
6 To be clear, the 2023 Order seeks to modify the 2012 Order’s definition of
“prior express written consent,” which is codified at 47 C.F.R. § 64.1200
(f)(9).
See 2023 Order, 38 FCC Rcd. at 12297 (amending 47 C.F.R. § 64.1200
(f)(9)).
The 2012 Order’s “prior express written consent” restriction and definition, in
turn, constitute the FCC’s interpretation of “prior express consent” as used in
the TCPA. See 2012 Order, 27 FCC Rcd. at 1838 (noting that “the TCPA is
silent on what form of express consent . . . is required” and then stating that
the FCC “has discretion to determine, consistent with [c]ongressional intent,
the form of express consent required”). Therefore, by modifying the 2012
Order’s definition of “prior express written consent,” the 2023 Order
necessarily interprets the phrase “prior express consent” as used in the TCPA.
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24-10277 Opinion of the Court 9
cannot give “prior express consent” to receive telemarketing or
advertising robocalls from multiple parties unless the called party
consents to receive calls from each individual caller separately. Id.
at 12260–61;id. at 12261
(“[O]ur rule requires consent to one seller
at a time.”). As explained by IMC, under the 2023 Order, a
consumer cannot give “prior express consent” by checking one
checkbox that states that the consumer consents to telemarketing
or advertising robocalls “from Bank A and Bank B.” But checking
two checkboxes—one for Bank A and one for Bank B—is
presumably fine. See id. at 12260
(explaining that a consumer can
never provide prior express consent for robocalls by checking one
box consenting to a list of thousands of “marketing partners”). 7 We
refer to this restriction as the “one-to-one-consent” restriction.
The second restriction on what it means to give “prior
express consent” states that consented-to telemarketing or
advertising robocalls “must be logically and topically associated
with the interaction that prompted the consent.” Id. at 12297
(amending47 C.F.R. § 64.1200
(f)(9)). While the 2023 Order fails to
define “logically and topically associated,” id. at 12263, 12297
, as an
example, it states that “a consumer giving consent on a car loan
comparison shopping website does not consent to get robotexts or
robocalls about loan consolidation.” Id. at 12263
. In other words,
because “loan consolidation” is apparently not “logically and
topically associated with” car loans, a consumer cannot consent to
receive robocalls about loan consolidation on a car loan website
7 The FCC does not dispute IMC’s characterization of the 2023 Order.
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10 Opinion of the Court 24-10277
even if he clearly and unequivocally states that he wants to receive
such calls. See id.
8 We refer to this restriction as “the logically-and-
topically-related” restriction.
In sum, under the 2023 Order, consumers cannot consent to
receive robocalls (1) from more than one entity at a time or (2)
whose subject matter is not logically and topically related to, for
example, the website on which the consumer gives consent. See id. at 12297
. Again, these two restrictions apply only to
“advertisement[] or telemarketing” robocalls. See id.
And they
apply regardless of any facts showing “prior express consent” that
may be present in a particular case. See id.
We refer to these
restrictions together as the “additional ‘prior express consent’
restrictions.”
With this background in mind, we turn to IMC’s challenges
to the 2023 Order.
II. Standard of Review
The Hobbs Act, “which endows federal courts of appeals
with ‘exclusive jurisdiction to enjoin, set aside, suspend (in whole
or in part), or to determine the validity of’” FCC rulings, governs
our review. Autauga Cnty. Emergency Mgmt. Commc’n Dist. v. FCC,
8 As IMC explains, the 2023 Order would invalidate “prior express consent”
for calls about loan consolidation even if—on a car loan comparison shopping
website—a consumer checks one box consenting to receive robocalls “from
Bank A regarding auto loans,” and at the same time checks another box
consenting to receive robocalls “from Bank A regarding loan consolidation.”
Again, the FCC does not contest IMC’s characterization of the 2023 Order.
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24-10277 Opinion of the Court 11
17 F.4th 88, 97
(11th Cir. 2021) (quoting28 U.S.C. § 2342
). 9 When
reviewing agency action under the Hobbs Act, “we apply the
standards from the [APA].” Id. at 98
. And under the APA, the scope
of an agency’s statutory authority and whether an agency has acted
within that authority are legal questions we decide independently.
Loper Bright Enters. v. Raimondo, 603 U.S. 369
, 391–92 & n.4, 413
(2024); see 5 U.S.C. § 706
(providing that when reviewing
administrative action, “the reviewing court shall decide all relevant
questions of law”).
III. Discussion
Under the APA, courts “shall . . . hold unlawful and set aside
agency action, findings, and conclusions found to be . . . not in
accordance with law” or “in excess of statutory . . . authority.” 5 U.S.C. § 706
(2)(A), (C). IMC argues that the FCC exceeded its
statutory authority under the TCPA in issuing its 2023 Order
because the one-to-one-consent and logically-and-topically-related
9 We note that the Supreme Court recently heard oral argument in McLaughlin
Chiropractic Associates, Inc. v. McKesson Corp., in which the question presented
is whether the Hobbs Act requires district courts “to accept the FCC’s legal
interpretation of the Telephone Consumer Protection Act” in suits between
private parties. See Petition for a Writ of Certiorari at i, McLaughlin Chiropractic
Assocs., Inc. v. McKesson Corp., No. 23-1226 (U.S. filed May 17, 2024). Because
this case is on direct review from the FCC, the question presented in
McLaughlin Chiropractic is not relevant here.
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12 Opinion of the Court 24-10277
restrictions impermissibly conflict with the ordinary statutory
meaning of “prior express consent.” 10
After review, we agree with IMC that the FCC exceeded its
statutory authority under the TCPA because the 2023 Order’s
“prior express consent” restrictions impermissibly conflict with the
ordinary statutory meaning of “prior express consent.”
Accordingly, we grant IMC’s petition for review, vacate Part III.D
of the 2023 Order, and remand for further proceedings.
A. The additional “prior express consent” restrictions in the
2023 Order exceed the FCC’s statutory authority because
they conflict with the ordinary statutory meaning of “prior
express consent” in the TCPA
IMC argues that the FCC exceeded its statutory authority in
issuing the 2023 Order because the additional “prior express
consent” restrictions conflict with the ordinary statutory meaning
of “prior express consent” in the TCPA. In response, the FCC relies
on 47 U.S.C. § 227
(b)(2), which allows the FCC to “prescribe
regulations to implement” the TCPA, for its authority to
promulgate the additional “prior express consent” restrictions. 47
10 IMC also argues that the 2023 Order (1) impermissibly defines “prior express
consent” to mean one thing for telemarketing and advertising robocalls and
another thing for non-telemarketing and non-advertising robocalls,
(2) violates the First Amendment, and (3) is arbitrary and capricious under the
APA. Because we vacate Part III.D of the 2023 Order based on the FCC’s
attempt to define “prior express consent” in a way that conflicts with that
phrase’s ordinary statutory meaning, we do not reach IMC’s other challenges.
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24-10277 Opinion of the Court 13 U.S.C. § 227
(b)(2). 11 The agency argues that the additional “prior
express consent” restrictions are “fully consistent with the
common understanding” of the phrase “prior express consent.” 12
The parties are correct that this appeal turns on whether the
additional “prior express consent” restrictions are consistent with
the ordinary statutory meaning of “prior express consent” in the
TCPA. 13
11 Other TCPA provisions further detail the FCC’s authority. See, e.g., 47 U.S.C. § 227
(b)(2)(B), (C) (allowing the FCC to exempt certain calls from the
TCPA’s prohibitions). The FCC does not rely on those provisions here.
12 The agency does not argue that § 227(b)(2) gives it the authority to define
“prior express consent” inconsistently with the ordinary statutory meaning of
that phrase.
13 As mentioned above, IMC also argues that the FCC exceeded its statutory
authority by impermissibly defining “prior express consent” to mean one thing
for telemarketing and advertising robocalls, and another thing for non-
telemarketing and non-advertising robocalls. In other words, IMC argues that
the FCC has no authority to apply the additional “prior express consent”
restrictions to only telemarketing and advertising robocalls.
In response to that theory, the FCC argues that Congress gave it discretion to
define “prior express consent” differently for different calls. The FCC cites a
statutory finding that states that the agency “should have the flexibility to
design different rules for those types of automated or prerecorded calls that it
finds are not considered a nuisance or invasion of privacy, or for
noncommercial calls, consistent with” the First Amendment. Tel. Consumer
Prot. Act, Pub. L. No. 102-243, § 2
(13),105 Stat. 2394
, 2395 (1991) (codified at
47 U.S.C. § 227
note).
Even if the FCC has the authority to define “prior express consent” differently
for different types of calls—a question we do not reach—its authority to do so
says nothing about whether the FCC has the authority to interpret “prior
express consent” in a way that conflicts overall with the ordinary statutory
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14 Opinion of the Court 24-10277
With certain exceptions not relevant here, § 227(b)(1) of the
TCPA generally prohibits making robocalls without the called
party’s “prior express consent.” 47 U.S.C. § 227
(b)(1)(A), (B).
Notably, the TCPA requires only “prior express consent”—not
“prior express consent” plus. See id.
Section 227(b)(2), in turn, gives
the FCC the power to “prescribe regulations to implement” the
TCPA’s prohibition on unconsented-to robocalls. Id.
§ 227(b)(2).
To “implement” means “[t]o complete, perform, carry into effect
(a contract, agreement, etc.); to fulfil[l] (an engagement or
promise).” Implement, Oxford English Dictionary (2d ed. 1989). It
does not mean to “alter.” Indeed, “[a]t the level of plain meaning,
it seems to us a non sequitur to claim that a[n] [agency] can
‘implement’ a [statute] by issuing a regulation that is inconsistent
with that [statute].” Solar v. City of Farmington, 2 F.4th 1285, 1289
(10th Cir. 2021). After all, “[a] generic grant of rulemaking
authority to fill gaps . . . does not allow the FCC to alter the specific
choices Congress made.” Nat’l Ass’n of Broads. v. FCC, 39 F.4th 817, 820
(D.C. Cir. 2022). And an agency cannot “decree[] a duty that
the statute does not require and that the statute does not empower
the [agency] to impose.” Id. at 819
. As another court has explained,
§ 227(b)(2)’s grant of authority to “implement” the TCPA gives the
FCC only the authority to “reasonably define” the TCPA’s consent
meaning of that phrase—the question we address here. Perhaps recognizing
this conclusion to be true, the FCC does not argue that it has discretion to
define “prior express consent” in a way that conflicts with the phrase’s
ordinary statutory meaning.
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24-10277 Opinion of the Court 15
provisions. See Bais Yaakov of Spring Valley v. FCC, 852 F.3d 1078
,
1082 & n.1 (D.C. Cir. 2017) (Kavanaugh, J.).
Accordingly, to determine whether the FCC exceeded its
statutory authority in its 2023 Order, we must decide whether the
additional “prior express consent” restrictions accord with the
ordinary statutory meaning of “prior express consent” in the
TCPA. See 47 U.S.C. § 227
(b)(1)(A), (B). The questions we
confront are straightforward: First, to give “prior express consent”
for telemarketing or advertising robocalls, must a consumer always
consent to calls from only one entity at a time (i.e., give one-to-one
consent)? See 2023 Order, 38 FCC Rcd. at 12297. And second, can
a consumer give “prior express consent” to receive telemarketing
or advertising robocalls only when the consented-to calls are
“logically and topically associated with the interaction that
prompted the consent”? See id.
The answer to both questions is
no, and the additional “prior express consent” restrictions thus fail.
Statutory interpretation begins and ends with the text. See
In re Celotex Corp., 227 F.3d 1336
, 1338 (11th Cir. 2000). When a
statute leaves a phrase undefined, we typically give that phrase its
“plain and ordinary meaning.” U.S. Commodity Futures Trading
Comm’n v. Hunter Wise Commodities, LLC, 749 F.3d 967, 976
(11th
Cir. 2014). But “[w]here Congress uses terms that have
accumulated settled meaning under . . . the common law, a court
must infer, unless the statute otherwise dictates, that Congress
means to incorporate the established meaning of these terms.”
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16 Opinion of the Court 24-10277
Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242
, 1252–53 (11th Cir.
2014) (quoting Neder v. United States, 527 U.S. 1, 21
(1999)).
Here, the TCPA leaves the phrase “prior express consent”
undefined, but our precedent has filled the void. Given the
statute’s silence on what constitutes “prior express consent,” we
have held “that Congress sought to incorporate the ‘common law
concept of consent’” into the TCPA. Lucoff v. Navient Sols., LLC,
981 F.3d 1299, 1304
(11th Cir. 2020) (quoting Osorio,746 F.3d at 1255
) (discussing the phrase “prior express consent” in § 227(b)(1)
of the TCPA). Thus, “[w]e use common law principles to interpret
whether a party [gives] . . . their ‘prior express consent’ to receive
calls under the TCPA.” Id. (citing Osorio, 746 F.3d at 1255
).
We have explained that under common law, “the basic
premise of consent is that it is given voluntarily.” Osorio, 746 F.3d at 1253
(quotation omitted). “[C]onsent is a willingness for certain
conduct to occur.” Lucoff, 981 F.3d at 1304
(quoting Schweitzer v.
Comenity Bank, 866 F.3d 1273, 1276
(11th Cir. 2017)). “[E]xpress
consent,” in turn, is “[c]onsent that is clearly and unmistakably
stated.” Consent, Black’s Law Dictionary (12th ed. 2024); see also Gorss
Motels, Inc. v. Safemark Sys., LP, 931 F.3d 1094, 1100
(11th Cir. 2019)
(defining “express permission” in § 227(a)(5) to mean “permission
that is clearly and unmistakably granted by actions or words, oral
or written” (quotation omitted)). And “[t]he qualifier ‘prior’
modifying ‘express [consent]’ means that the [called party] must
have given his express [consent] before” he received the call. Gorss
Motels, 931 F.3d at 1100
. Whether a party has given his “prior
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24-10277 Opinion of the Court 17
express consent” depends “heavily” on the facts of each case.
Schweitzer, 866 F.3d at 1279
.
In this case, the 2023 Order’s “prior express consent”
restrictions conflict with the common law meaning of “prior
express consent.” We first analyze the one-to-one-consent
restriction. We then turn to the logically-and-topically-related
restriction.
1. The one-to-one-consent restriction conflicts
with the ordinary statutory meaning of “prior
express consent” in the TCPA
The one-to-one-consent restriction states that a consumer
cannot consent to receive telemarketing or advertising robocalls
from multiple entities unless the consumer consents to each caller
separately. 2023 Order, 38 FCC Rcd. at 12261, 12297. So under the
2023 Order, even if a consumer “clearly and unmistakably” states,
before receiving a robocall, that he is willing to receive
telemarketing or advertising robocalls from multiple entities, the
2023 Order provides that consent cannot be given unless the
consumer independently and separately consents to receive
robocalls from each individual caller. See id.; Gorss Motels, 931 F.3d at 1100
. In so doing, the 2023 Order exceeds the FCC’s statutory
authority.
Our prior case law explains the ordinary statutory meaning
of “prior express consent.” In Gorss Motels, we held that fax
recipients gave their “prior express permission” to receive “faxed
advertisements” by agreeing—in one franchise agreement—to
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18 Opinion of the Court 24-10277
receive faxes both from a specific hotel and, more broadly, its
“affiliates.” 931 F.3d at 1100–02. The fax recipients were able to
provide “prior express permission” to multiple, vaguely defined
entities at one time. See id. at 1102
(“A fax recipient may provide
his express permission to receive faxes from third parties, which the
hotels did when they agreed in their franchise agreements with [an
entity] to receive assistance with purchasing items from [the
entity’s] affiliates.”). And like Gorss Motels, other cases from our
Court and our sister circuits explain how broad “prior express
consent” can be under the TCPA. See Mais v. Gulf Coast Collection
Bureau, 768 F.3d 1110
, 1124–25 (11th Cir. 2014) (finding prior
express consent where the plaintiff’s wife consented to robocalls
from more than one entity at a time); Lucoff, 981 F.3d at 1302, 1306
(finding prior express consent where the plaintiff agreed to receive
calls from multiple entities); Fober v. Mgmt. & Tech. Consultants,
LLC, 886 F.3d 789, 791
, 793–94 (9th Cir. 2018) (similar); Baisden v.
Credit Adjustments, Inc., 813 F.3d 338
, 346–47 (6th Cir. 2016)
(similar).
Thus, our cases show that to give “prior express consent” to
receive a robocall, one need only “clearly and unmistakably” state,
before receiving the robocall, that he is willing to receive the
robocall. See Gorss Motels, 931 F.3d at 1100
. One-to-one consent is
not required. See id. at 1102
. Because the one-to-one-consent
restriction attempts to alter what we have said is the ordinary
common law meaning of “prior express consent,” the restriction
falls outside the scope of the FCC’s statutory authority to
“implement” the TCPA. See Nat’l Ass’n of Broads., 39 F.4th at 820
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24-10277 Opinion of the Court 19
(“A generic grant of rulemaking authority to fill gaps . . . does not
allow the FCC to alter the specific choices Congress made.”).
Though our case law, alone, shows why the one-to-one-
consent restriction fails, the FCC’s own brief provides even more
support for our conclusion. There, the FCC all but concedes that
the one-to-one-consent restriction alters the ordinary meaning of
“prior express consent.” In its brief, the agency states: “To be sure,
there may be particular instances, as IMC contends, in which it
would be reasonable to conclude that a consumer provides willing,
informed agreement to receive robocall marketing from ‘multiple
named intermediaries.’” Better put, the FCC concedes that a
consumer could give “prior express consent” under the TCPA
where its 2023 Order categorically says a consumer could not. So
as even the agency understands, the one-to-one-consent restriction
is unlawful.
The FCC attempts to save the one-to-one consent restriction
by arguing that consumers cannot be “presumed ‘voluntarily’ or
‘willingly’” to consent to robocalls unless they consent to the calls
on a one-to-one basis. This statement says nothing about whether
consumers can consent to robocalls from multiple entities all at
once. As the FCC itself admits, consumers no doubt can give “prior
express consent” under the TCPA to receive robocalls from
multiple parties without consenting to each caller separately. For
under our case law, all consumers must do to give “prior express
consent” to receive a robocall is clearly and unmistakably state,
before receiving a robocall, that they are willing to receive the
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20 Opinion of the Court 24-10277
robocall. See Gorss Motels, 931 F.3d at 1100
; Schweitzer,866 F.3d at 1279
. But the one-to-one-consent restriction impermissibly rejects
consent in such cases. The restriction thus exceeds the FCC’s
statutory authority to “implement” the TCPA.
As perhaps a Hail Mary, the FCC suggests that because the
2023 Order is good policy, it is necessarily lawful. That argument
fails, too. Atextual good policy cannot overcome clear text. See
Util. Air Regul. Grp. v. EPA, 573 U.S. 302
, 325 (2014) (“An agency has
no power to ‘tailor’ legislation to bureaucratic policy goals by
rewriting unambiguous statutory terms.”); Bais Yaakov, 852 F.3d at 1083
(observing that an agency’s opinion that its rule is “good
policy” “does not change the statute’s text”). And here, the TCPA’s
text is clear: Callers must obtain “prior express consent”—not
“prior express consent” plus. See 47 U.S.C. § 227
(b)(1)(A), (B). The
FCC has no authority to dictate otherwise. We thus reject the
FCC’s one-to-one-consent restriction.
2. The logically-and-topically-related restriction
conflicts with the ordinary statutory meaning
of “prior express consent” in the TCPA
The logically-and-topically-related restriction is equally
unlawful. That restriction states that consented-to telemarketing
or advertising robocalls “must be logically and topically associated
with the interaction that prompted the consent.” 2023 Order, 38
FCC Rcd. at 12297 (amending 47 C.F.R. § 64.1200
(f)(9)). That is,
unless a robocall’s subject matter is “logically and topically” related
to the “interaction” that prompted the consent, there is no consent
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24-10277 Opinion of the Court 21
to receive a robocall even if a consumer “clearly and unmistakably”
states, before receiving the robocall, that he is willing to receive the
robocall. See Gorss Motels, 931 F.3d at 1100
. Just like the one-to-one
consent restriction, then, this restriction impermissibly alters what
it means to give “prior express consent.” See id.
As IMC points out, a consumer can provide prior express
consent “‘clearly and unmistakably’ . . . on a website with no
logical or topical relationship to the call being consented to.” For
example, a consumer can consent to calls about “loan
consolidation” while shopping online for “auto loans.” Yet the
2023 Order purports to bar such consent. See 2023 Order, 38 FCC
Rcd. at 12263. 14 Again, even if a consumer visiting a car loan
14 IMC provides the following example in its brief:
Per the graphic, a consumer presumably could give “prior express consent” to
receive calls about both auto loans and loan consolidation by checking both
checkboxes. But the 2023 Order would invalidate any consent as to the calls
about loan consolidation because the consumer is giving the consent on
“CarLoansWebsite.com.” Apparently, “loan consolidation” is not “logically
and topically associated with” car loans. See 38 FCC Rcd. at 12263 (stating that
“a consumer giving consent on a car loan comparison shopping website does
not consent to get robotexts or robocalls about loan consolidation”). Beyond
this example, what “logically and topically associated” means is anyone’s
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22 Opinion of the Court 24-10277
website “clearly and unmistakably” states, before receiving a
robocall, that he is willing to receive telemarketing or advertising
robocalls about loan consolidation, the 2023 Order states that no
consent can be given. Id. at 12263, 12297. The FCC’s authority to
“implement” the TCPA gives it no authority to mandate such a
result. See Nat’l Ass’n of Broads., 39 F.4th at 820
(explaining that a
general grant of statutory authority to implement statutes does not
allow agencies to “alter the specific choices Congress made”).
The FCC’s concession at oral argument bolsters our
conclusion. Counsel was given a hypothetical situation in which a
consumer checks three boxes agreeing to receive robocalls from
three different mortgage companies. The consumer then checks a
fourth box agreeing to receive robocalls from a home repair
business. Counsel agreed that the 2023 Order’s logically-and-
topically-related restriction would invalidate the consumer’s
consent to receive robocalls from the home repair business.
Critically, though, counsel then “absolutely” agreed that “without
the [2023 Order] the [TCPA] would allow” that consumer to
consent to the home repair business’s calls. Because the logically-
and-topically-related restriction would preclude consent where,
guess. The FCC “decline[d] to adopt a definition of ‘logically and topically’”
in the 2023 Order because it supposed that robocallers would “err on the side
of limiting” the content of their calls “to what consumers would clearly
expect.” Id.
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24-10277 Opinion of the Court 23
under the TCPA, there indeed could be consent, the restriction
fails.
The FCC resists this conclusion by arguing—just as it does
with the one-to-one-consent restriction—that consumers cannot
be “presumed ‘voluntarily’ or ‘willingly’ to invite robocalls” from
entities on a website “when the listed entities have no logical or
topical connection to the website.” But as explained above,
whether 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. As long as a
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. See Gorss Motels, 931 F.3d at 1100
; Schweitzer,866 F.3d at 1279
.
And to the extent the FCC argues that the logically-and-
topically-related restriction is lawful because it is good policy, that
argument fails for the same reasons given above. Again, atextual
good policy cannot overcome clear text. Bais Yaakov, 852 F.3d at 1083
. And here, the TCPA’s text is clear: Callers must obtain “prior
express consent”—not “prior express consent” plus. See 47 U.S.C. § 227
(b)(1)(A), (B).
* * *
The 2023 Order impermissibly invalidates a consumer’s
“prior express consent” in two situations when “prior express
consent” has been given under the TCPA. See Gorss Motels, 931 F.3d at 1100
(explaining that to give “prior express permission” to
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24 Opinion of the Court 24-10277
receive an unsolicited fax, one need only clearly and unmistakably
state, before receiving the unsolicited fax, that he is willing to
receive the unsolicited fax). Under the 2023 Order, no longer must
robocallers merely obtain “prior express consent,” as the TCPA
requires. Instead, they must go through the pains of obtaining
prior express consent (1) on a one-to-one basis and (2) during an
“interaction” that is “logically and topically associated” with the
subject matter of the robocalls. 2023 Order, 38 FCC Rcd. at 12297.
At bottom, the FCC has “decreed a duty [on lead generators] that
the statute does not require and that the statute does not empower
the FCC to impose.” Nat’l Ass’n of Broads., 39 F.4th at 819
. The
FCC therefore exceeded its statutory authority in redefining “prior
express consent” to include the additional “prior express consent”
restrictions. 15
15 The FCC also argues that its Urth Access enforcement action supports its
additional “prior express consent” restrictions. There, Urth Access made
student loan robocalls after it had sought prior express consent to make calls
concerning unrelated topics and had hidden a list of more than 5,000 potential
callers on a secondary website. 37 FCC Rcd. 14133, 14139 (2022).
We are not bound by the FCC’s Urth Access decision when it comes to
determining what it means to give “prior express consent” under the TCPA.
See Loper Bright, 603 U.S. at 392 (explaining that under the APA, it is “the
responsibility of the court to decide whether the law means what the agency
says”). Nor do we see how an enforcement action with particularly egregious
facts compels the conclusion that the FCC has the statutory authority to
redefine “prior express consent” in a way that conflicts with the ordinary
statutory meaning of that phrase.
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24-10277 Opinion of the Court 25
B. Vacatur is the appropriate remedy
IMC asks us to vacate Part III.D of the 2023 Order. The FCC
does not contest vacatur as the appropriate remedy should IMC
prevail.
“[V]acatur . . . is the ordinary APA remedy,” but it is not the
only one. Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng’rs,
781 F.3d 1271, 1290
(11th Cir. 2015) (quotation omitted). Remand
without vacatur is also available. See id.
When considering
whether to vacate and remand, or just remand, we consider “the
seriousness of the order’s deficiencies (and thus the extent of doubt
whether the agency chose correctly) and the disruptive
consequences of an interim change that may itself be changed.” Id.
(quotation omitted). “The decision . . . to vacate agency action
falls within our broad equitable discretion.” Id.
We conclude that vacatur is appropriate here. The FCC has
impermissibly exceeded its statutory authority by attempting to
redefine “prior express consent” to include the additional
restrictions. And exceeding statutory authority is a serious defect.
See Bais Yaakov, 852 F.3d at 1082–83 (vacating FCC order because it
exceeded statutory authority). Vacatur is therefore appropriate. 16
16 We recognize that there is an ongoing debate about whether the APA
authorizes vacatur. Compare, e.g., United States v. Texas, 599 U.S. 670
, 695–704
(2023) (Gorsuch, J., concurring) (doubting that the APA authorizes vacatur),
with Corner Post, Inc. v. Bd. of Governors of Fed. Res. Sys., 603 U.S. 799
, 826–43
(2024) (Kavanaugh, J., concurring) (opining that “vacatur is an appropriate
remedy when a federal court holds that an agency rule is unlawful”). We do
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26 Opinion of the Court 24-10277
IV. Conclusion
In its attempt to “implement” the TCPA, the FCC
overstepped statutory boundaries. See 47 U.S.C. § 227
(b)(2).
“Agencies have only those powers given to them by Congress, and
‘enabling legislation’ is generally not an ‘open book to which the
agency [may] add pages and change the plot line.’” West Virginia v.
EPA, 597 U.S. 697, 723
(2022) (alteration in original) (quoting Ernest
Gellhorn & Paul Verkuil, Controlling Chevron-Based Delegations, 20 Cardozo L. Rev. 989
, 1011 (1999)). But changing the plot line is
exactly what the FCC tried to do here. “Congress drew a line in
the text of the statute” between “prior express consent” and
something more burdensome. Bais Yaakov, 852 F.3d at 1082
; see47 U.S.C. § 227
(b)(1)(A), (B). Rather than respecting the line that
Congress drew, the FCC stepped right over it. See Bais Yaakov, 852 F.3d at 1082
.
For these reasons, we grant IMC’s petition for review,
vacate Part III.D of the 2023 Order, and remand for further
proceedings.
PETITION GRANTED; ORDER VACATED IN PART
AND REMANDED.
not join that debate here because, as mentioned, the FCC does not contest
vacatur as an available remedy.