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From The IMC Board: Thoughts on the Case and Best Practices

Writer's picture: IMC BoardIMC Board

On Friday, January 24, 2025, the Eleventh Circuit Court of Appeals vacated the FCC’s "one-to-one" and "logical and topical association" requirements for “prior express written consent” to make certain types of calls, including text messages, using regulated technology in the case Insurance Marketing Coalition v Federal Communications Commission. The Eleventh Circuit adopted the IMC’s core legal arguments, namely that the FCC exceeded its statutory authority under the TCPA when it adopted new requirements that impermissibly conflict with the statutory meaning of “prior express consent “.


Before deciding to challenge the FCC’s one-to-one consent rule, the IMC discussed member objections to the regulation, whether a lawsuit was the best course of action, and what the IMC hoped to achieve. It was clear that IMC members fundamentally support the goal of reducing unwanted calls and texts. IMC members were either already following best practices for obtaining consumer consent or were in the process of implementing strong consent-based practices for various reasons, including principled beliefs and compliance with other agency regulations, such as the CMS one-to-one consent requirement for data sharing in the Medicare vertical.


While the IMC believed the FCC’s rule was well intentioned, there were significant concerns with the way that the FCC was attempting to redefine consent under the TCPA. Specifically, the IMC decided to challenge the rule because of three main concerns:

  • The definition of "prior express written consent" was vague, with much left open to interpretation. Compliance would have been difficult until many of the questions and concerns surrounding the one-to-one rule were sorted out in private lawsuits and additional FCC rulings. Lead-based marketers would have faced imminent risk of being sued under the TCPA simply to define the scope and reach of the regulation. Essentially, these businesses, including many small businesses, would have paid the price for the lack of clarity in the form of expensive legal defense fees.

  • The significant operational burdens of the rule effectively prioritized larger brands (with larger budgets) at the expense of smaller, less known regional brands and brokerages. In the insurance industry, small businesses would have faced significant increased operational costs and reduced performance, obstructing competition and limiting consumer choice. 

  • The contemplated timeframes of the rule appeared to open a window for opportunistic plaintiffs to file lawsuits, including potential bet-the-company class actions, against marketers for outreach that was compliant prior to the rule's effective date. Businesses would have been forced to divert resources to deal with a period of legal chaos while the rule’s reach was sorted out. 


The IMC felt it was worth the effort and investment to attempt to mitigate these risks. Thankfully, the Eleventh Circuit was receptive to the IMC’s arguments. So things go back to “normal” - but was normal really so great either?


This Does Not Mean that There Aren’t Any Rules!

Even though the "one-to-one" and "logical and topical association" requirements are not required to obtain “prior express written consent,” marketers still must:


  • Obtain “prior express written consent” before making certain outbound calls to consumers using regulated technology.

  • Comply with other rules requiring one-to-one consent for sharing consumer data in some verticals, like the Medicare vertical. 

  • Honor do-not-contact (DNC) requests under federal and state Do-Not-Call laws.

  • Comply with all other aspects of state and federal marketing laws.

  • Honor email opt-out requests as mandated under CAN-SPAM.


The IMC believes these regulations promote consumer choice and give consumers control over the purchase experience. Insurance is a complex product, making it all the more necessary that businesses help consumers understand and make choices. Consumer outreach is an essential part of enabling that understanding and choice; but can be problematic if consumers feel harassed or are unsatisfied. The IMC believes the key to successful marketing and sales of insurance products requires businesses to make clear disclosures, set good expectations, follow through on what they tell consumers they will do, and be responsive when a consumer is no longer interested.


Peace of Mind

The IMC is, of course, very happy with the results of the lawsuit. We are concerned, though, that some might see this case and ruling as an endorsement of bad practices or consumer harassment. That is not the case, and the IMC’s Code of Conduct promotes compliant, ethical marketing practices in the insurance industry. The result of the IMC’s challenge means that IMC members will not face potentially catastrophic TCPA risk and that small businesses can continue offering consumers more choice, thereby promoting competition. Compliant marketers should rest easier with some ‘peace of mind’ as a result of the Eleventh Circuit's decision. Non-compliant marketers should reconsider their practices.


Committed To Ethical Marketing Practices

Above all, we agree that consumer-friendly common sense and decency should prevail. Marketers should treat consumers with respect by honoring the consumer’s direction. Consent-based marketing is certainly critical for building long-term value. The good actors go beyond the rules and implement consumer-driven practices to build real value. Rules alone will never stop the bad actors aiming for a quick dollar. Ultimately, consumer-friendly initiatives will prevail. The IMC encourages all businesses to prioritize consumer needs and experience, and build on the collective efforts over the past year. The IMC is thrilled with the outcome of the challenge, and stands ready to continue to promote a lead generation industry that is sustainable and compliant. 


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