On July 14, 2025, the FCC issued an Order halting a proposed amendment to 47 CFR § 64.1200(f)(9) that would have narrowed the scope of communications that may be sent after a caller gives “prior express consent.” The FCC’s Order follows the recent decision in Insurance Marketing Coalition, Ltd. v. FCC, 127 F.4th 303 (11th Cir. 2025), which vacated a change to that rule adopted by an FCC Order issued in late 2023.
Prior to the 2023 FCC Order, the phrase “prior express consent” under this regulation had the same meaning as the common law concept of consent. Ins. Mktg. Coal., 127 F.4th at 313. Specifically, “permission that [was] clearly and unmistakably granted by actions or words, oral or written” before the marketing call was received. Id. (internal citations omitted)
The FCC’s 2023 Order modified 47 CFR § 64.1200(f)(9)’s definition of “prior express consent” in two ways. First, a called party could only authorize one seller at a time to make telemarketing calls. Second, the telemarketing calls flowing from that consent “must be logically and topically associated with the interaction that prompted the consent.”
After a legal challenge was brought, the Eleventh Circuit in Insurance Marketing Coalition ruled the FCC had exceeded its statutory authority in issuing the 2023 Order because the Order’s revised definition of “prior express consent” conflicted with the common law meaning of the term. 127 F.4th at 313. Accordingly, the court vacated the rule.
The FCC’s July 14 Order takes the “ministerial step” of conforming 47 CFR § 64.1200(f)(9) with the Eleventh Circuit’s mandate, and the status quo, by reverting the rule’s definition of “prior express consent” to the pre-2023 Order, common law, definition. This action attempts to moot requests from more than half of state attorneys general for the Eleventh Circuit to re-hear Insurance Marketing Coalition en banc.
