FCC Urges 11th Circuit to Deny Insurance Coalition’s Motion to Stay Robotext Order

The FCC is asking the 11th U.S. Circuit Appeals Court to deny the Insurance Marketing Coalition’s April 3 motion to stay portions of its Dec. 18 order implementing rules under the Telephone Consumer Protection Act to target and eliminate illegal robotexts, pending the disposition of the coalition’s appeal to vacate the order (see 2312220059). The commission filed its opposition Monday (docket 24-10277).

The coalition is asking the 11th Circuit to stay the order on grounds that it exceeds the FCC’s authority and irreparably harms coalition members. The coalition argues that the order will reduce consumer choice, drive small businesses from the market and devastate performance marketing companies that partner with and operate comparison shopping websites.

Since 2012, the FCC has required that express consent for most categories of telemarketing robocalls be made in writing under the Telephone Consumer Protection Act, said the commission’s opposition. But in recent years, that rule has failed to protect consumers from "a flood of unwanted texts and calls" when they visit comparison shopping websites run by lead generators, it said.

A consumer visiting such a website might click a single box and without realizing it consent to robocalls and robotexts from hundreds or thousands of the lead generator’s marketing partners across a wide range of unrelated businesses, said the FCC’s opposition. The order under review addresses the problem by updating the commission’s rules to close that lead generator loophole, it said.

To provide lead generators and their clients ample time to prepare, the revised rule won’t take effect before Jan. 27, said the FCC’s opposition. But once the rule does take effect, robocalls and robotexts that require express written consent will no longer be allowed unless a called party gives advertiser-specific one-to-one consent, and the telemarketing in question is logically and topically related to the website where consent is obtained, it said.

The petitioning coalition, which represents lead generators in the insurance industry, seeks a stay pending judicial review of the revised written consent rule, said the FCC’s opposition. But the commission’s reasonable definition of express consent is “fully consistent” with the TCPA’s “statutory text” and congressional intent, it said. It also “aligns with consumers’ expectations, and ensures consent is informed,” it said.

Because the commission’s narrowly tailored regulation of commercial speech “furthers a substantial government interest in protecting consumer privacy,” the order also “comports with the First Amendment,” said the FCC’s opposition. The coalition thus hasn’t shown “any likelihood of success on the merits,” it said.

Nor has the coalition “adequately substantiated its various theories of irreparable harm,” said the FCC’s opposition. In any event, the claimed injuries to the coalition’s members “are far outweighed by the government’s vital interest in protecting consumers from intrusive and unwanted telemarketing,” it said.