11th Circuit Expresses Doubt About FCC's 1-to-1 Robotext Consent Policy
Federal appellate Judge Robert Luck repeatedly expressed skepticism Wednesday about the one-to-one robotext consent policy the FCC adopted a year ago (see 2312130019). During roughly 33 minutes of oral argument before the 11th U.S. Circuit Court of Appeals (docket 24-10277), Luck and Matthew Dunne from the FCC Office of General Counsel repeatedly circled around the issue of whether the agency went too far in implementation. The Insurance Marketing Coalition (IMC) is challenging the FCC order, arguing that the agency exceeded its Telephone Consumer Protection Act statutory authority (see 2405170005). Some observers had predicted the FCC could face an 11th Circuit having particular misgivings regarding regulatory agency reach (see 2412060029).
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Luck said he was concerned that the FCC, by not allowing people to broadly consent to lead-generating robotexts from marketers -- with those consents having to be given individually to marketers -- was limiting consumers' rights. Luck acknowledged that few consumers would want to give that kind of broad consent and open the door to wide robotext marketing efforts. But that one-to-one consent issue is "the crux of what this case is about," Luck said.
Dunne said the order is a balancing act between consumers getting what they want and guarding against claims that the consumer has consented where they didn't intend to.
Luck questioned the justification of the FCC's approach. "Go after the abusers, don't go after me," he said. "Let's say I am the rare" person who wants a barrage of robotexts. In that situation, the person should have an ability to consent broadly, Luck said.
Dunne called the regime under the 2023 order, with consumers having to check multiple consent boxes instead of one, "a pretty small burden." He added, "It's a small price to pay to protect the right of people who do not want to get calls that they did not want to consent to."
In response, Luck questioned how the agency can rewrite what it was authorized to do -- explicitly allow consent -- by saying there are problems with allowing consent in the form of too many people unwittingly consenting to something. "Just because you guys are ineffective at enforcing the authority doesn't mean that you have the right to limit one's rights, statutory rights, or to rewrite those rights, to limit what they mean," Luck said. "There are other things that you could do. You can hire more lawyers, you can prosecute more cases, you can investigate further."
Luck and Covington's Kevin King, representing petitioner IMC, also went back and forth over the "prior express consent" requirement in the FCC rule. At one point, as King was explaining IMC's argument that the agency is seemingly treating that phrase as if it has different meanings in various contexts, Luck urged King to move on and said the argument about the rule's implementation being in conflict with the TCPA was stronger.
King said the agency under the Administrative Procedure Act has a duty to explain when it rejects a commenter's proposal, yet in its 2023 robocall order it waved off without explanation tighter prior express consent requirements suggested by IMC. He said FCC Commissioner Nathan Simington's dissent vote cast the robotext order as arbitrary and capricious.
Luck, at one point, said he agreed with the FCC's arguments that it was trying to address a problem and that he doubted the agency was being arbitrary and capricious.
King urged the three-judge panel to either issue a stay or issue an opinion before the order's rules go into effect Jan. 27.
Also hearing the case were Judges Elizabeth Branch and Barbara Lagoa.