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Four small business owners and the National Consumers League (NCL) haveasked theU.S. Court of Appeals for the Eleventh Circuit for en banc rehearing to reconsider a three-judge panels decision to vacate the Federal Communications Commissions (FCC)One-to-One Consent Rule. The rule would have eliminated a significant amount of the unwanted telemarketing robocalls plaguing consumers and small business owners.

Represented by the National Consumer Law Center (NCLC) and Public Justice, NCL and the small business owners argue that the panels decision did not use the correct standard for reviewing agency decisions when it vacated the FCCs One-to-One Consent Rule. In February, the groups soughtpermission to intervenein the case after the FCCs new leadership paused implementation of the rule and indicated it was not likely to defend it.

The panel failed to follow the guidance established by the U.S. Supreme Court inLoper Bright Enterprises v. Raimondowhen it vacated the FCCs rule, saidLeah Nicholls, director of Public Justices Access to Justice Project. The panel was wrong to disregard the FCCs statutory authority and ignore its judgment and experience in creating the rule.

Volume of robocalls rising

With the volume of unwanted telemarketing robocalls rising, the FCCs One-to-One Consent Rule is an essential protection for all Americans,said Margot Saunders, senior attorney at the National Consumer Law Center.The rule will help reduce the tens of billions of telemarketing robocalls that erode consumers trust in the U.S. telephone system. By addressing telemarketing calls, the rule would also allow telephone service providers to better identify and focus on blocking dangerous scam calls that rob consumers blind.

U.S. consumers received an estimated52.8 billion robocalls in 2024, according to YouMails Robocall Index. Telemarketing robocalls surged by more than 25% in 2024, and accounted for nearly 40% of all robocalls.

Congress enacted the Telephone Consumer Protection Act (TCPA) to protect consumers from the scourge of unwanted robocalls. The statute prohibits robocalls without the prior express consent of the called party (the person receiving the calls) and tasks the FCC with adopting necessary regulations to implement this.

Regulation updated, toughened

In December 2023, the FCC updated its regulations, requiring that prior express consent to be called must be provided to one entity at a time. This rule would combat unwanted and illegal telemarketing calls and texts by prohibiting robocallers from treating a consumers single click on a website as consent to receive telemarketing robocalls from dozens (or even hundreds or thousands) of sellers. The Rule also prohibits the sale and resale of consent, which is a substantial driver of unwanted robocalls.

The courts order inInsurance Marketing Coalition v. FCCvacated the FCCs One-to-One Consent Rule on January 24, just one business day before the regulation would have gone into effect.

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