BREAKING NEWS:
We may have started our morning wondering what litigation would hit Monday morning with 1:1 taking effect, but a decisive one-two punch didn’t just knock out the rule – it appears to have killed it completely!
First, a left hook came from the FCC when they issued a stay, pausing the implementation of 1:1 for a gracious 365 days while they waited for a decision in the pending IMC case. In relatively complex legal jargon, it appears that the Commission had two primary motivations around this 1) respect for the court evaluating the challenge raised by IMC and 2) concerns from businesses that they cannot adjust in time. The Commission expressed a desire to allow the court an opportunity to determine the legality behind the rule, rather than forcing something through that may be later repealed. Similarly, it appears that there is now a newfound sensitivity towards the many in our industry regarding the negative impact this rule could have potentially presented for businesses and consumers alike.
Seemingly moments later, a quick but powerful uppercut was issued by the 11th Circuit where they, in their 26 page opinion, concluded that the FCC went too far in their rulemaking, stating:
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; see 47 U.S.C. § 227(b)(1)(A), (B). Rather than respecting the line that Congress drew, the FCC stepped right over it.
In light of this decision, it would appear that the 1:1 rule isn’t just on hold – it’s DEAD and gone.
Before you pop your champagne, this should be a sobering moment for members of the lead generation community to realize that the careless practices of a few almost destroyed an industry for many. There needs to be a paradigm shift towards respecting the consumer as we attempt to market to them. It is also important to note that, while the courts believe that the FCC overstepped, Congress has the power to implement something quite similar. Band together as good actors and make sure your voices are heard, because the plaintiff’s bar will not rest. In retaliation to REACH’s brief but well written petition to stay, NCLC fired back a scathing rebuttal that clearly shows a very one-sided view. I’m sure it won’t be the last we hear from them…
Speaking of being heard, REGISTER NOW for our emergency webinar - January 28, 10:00 A.M. PST., covering these topics and dissecting what this could mean for you.