Insurance Marketing Coalition v. FCC

Question Presented

Whether the Federal Communications Commission had the authority to enact a rule establishing that a phone subscriber can only provider consent to be robocalled to one seller at a time.

Background

Congress tasked the FCC with enacting regulations to protect phone subscribers from unwanted robocalls through the Telephone Consumer Protection Act (TCPA). In 2023, the agency issued an order prohibiting lead generators from reselling a consumer’s consent to be robocalled. That means, for example, that a website visitor filling out a form for car insurance quotes would not receive endless robocalls and texts about solar panels—or even about car insurance quotes from companies other than the company to which that website visitor manually gave consent.

The Case

A legal challenge was brought by Insurance Marketing Coalition (IMC), a lead generator company, which argued that the FCC exceeded its statutory authority in enacting the rule; that the rule violated the First Amendment; and that the rule was arbitrary and capricious. The FCC explained that it has long had different rules for telemarketing and non-telemarketing calls; that its rule aligns with the meaning of consent; that lead generation websites are a problem; and that the new rule is an appropriate solution.

The Eleventh Circuit sided with IMC and vacated the FCC’s rule, finding that it infringed upon a consumer’s right to be robocalled. When the FCC did not act further to defend its rule after the change in presidential administration, the National Consumer League and Public Justice filed a motion to intervene and defend the FCC’s rule on behalf of consumers. EPIC filed a proposed amicus brief joined by multiple consumer advocacy groups in support of this motion, and a coalition of state attorneys general also filed an amicus brief in support, but ultimately the Eleventh Circuit denied the motion to intervene.

Brief of EPIC, et al.

In an NCLC-led brief, joined and filed by EPIC, consumer advocates argued that tightening consent requirements would limit the onslaught of unwanted telemarketing calls and that the FCC’s rule achieved this. The amicus brief also explained that the FCC’s rule was consistent with comparable rules issued by the Federal Trade Commission and the Center for Medicare & Medicaid Services, as well as the FCC’s own prior rules about consent for non-telemarketing calls.

EPIC’s proposed amicus brief in support of a motion to intervene and en banc review was joined by Consumer Federation of America, Public Knowledge, and the National Association of State Utility Consumer Advocates. The brief argued that the FCC’s rule curbed robocalls without ruinous consequences for business because it narrowly targeted the selling of TCPA consents, and that the initial panel’s reasoning was inconsistent with other existing protections against robocalls.