Court Cancels New Robocall Rules, Back to FCC

ORLANDO, Fla. — The 11th U.S. Circuit Court of Appeals vacated a new robocall and robotext rule that would have greatly limited certain phone and text communications between businesses and customers. The previous requirements for prior written consent are still in effect.

The court found the one-to-one consent rule exceeded the Federal Communications Commission’s (FCC) authority under the Telephone Consumer Protection Act (TCPA). The issue was remanded back to the FCC for further review.

The new consent rules for robocalls and robotexts were expected to begin Jan. 27 but were postponed on Jan. 24. The appeals court ruling came out on Jan. 27.  

Under the originally expected changes, businesses that called, texted or dropped a prerecorded message using an autodialer had to obtain one-to-one written consumer consent, called the one-to-one consent rule. The goal of the rule was to target lead generators, but it could have impacted any business that relied on consumer consent for these types of communications or purchased leads from third parties.

Another big change is expected to take effect on April 11, 2025, when the FCC’s new consent revocation rules for robocalls and robotexts are implemented, called the consent revocation rule. This change allows consumers to revoke prior consent through any reasonable method and marketers may not designate an exclusive means for revocation. The revocation request must be handled in a reasonable timeframe not to exceed 10 business days.

History of the TCPA

The TCPA was signed into law in 1991 with the goal of limiting unwanted telemarketing calls and faxes. In 2003, the FCC and the Federal Trade Commission (FTC) established a national Do-Not-Call registry. Over the years, there have been amendments to update the act.

The TCPA is enforced by the FCC and state attorneys general. Consumers are also able to file lawsuits against companies that violate the TCPA. TCPA litigation is a significant risk to business organizations that use calls, text messages and faxes to engage with consumers.

The fines for violating the TCPA are steep. Statutory damages are $500-$1500 per violation. A violation occurs when a business contacts someone without their consent using automated dialing systems, pre-recorded messages or SMS texts. Some examples of TCPA violations are:

• Calling a number on the national Do-Not-Call Registry
• Making pre-recorded sales calls to consumers who haven’t consented to be contacted
• Sending unsolicited texts to cell phones
• Continuing to call consumers who have asked to be removed from a call list

Compliance recommendations for Realtors®

Some best practices to ensure compliance include the following:

• Provide a clear explanation of the type of communication consumers are consenting to
• Offer an easy opt-out mechanism
• Establish thorough consent tracking systems to ensure accurate documentation of consumer consent for marketing communications
• Implement real-time consent management to address opt-out requests efficiently and avoid any delays in communication cessation

Keep in mind, this update is regarding the federal TCPA. In Florida, we have a separate law typically referred to as the Mini-TCPA. While similar, they are not the same. For questions about these complicated laws, always consult with your own attorney.

Maria Marchante is Associate General Counsel

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