FCC Ends Quest to Amend its Definition of “Prior Consent” in the Wake of Eleventh Circuit Ruling

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)