Top Six TCPA/Robocall Developments in 2024/2025

This article summarizes current Telephone Consumer Protection Act (TCPA) and robocall developments, including three important FCC final rules, a proposed FCC rule, a notable FCC enforcement action concerning spoofing of caller IDs, and a pending Supreme Court case concerning the precedential value of FCC interpretations—all of which could significantly affect TCPA litigation.  One of the final rules is in effect, another is scheduled to take effect in April, but the Eleventh Circuit has just vacated the third.  For more detail on current TCPA and robocall developments, see NCLC’s Federal Deception & Abuse Law Chapter 6 and Chapter 7.

1. The TCPA Applies to AI-Generated Calls 

With the growing application of artificial intelligence (AI) to communication technology, questions arise as to when an AI-generated call that appears to be from a human and even responds to communication from the person called is treated as a pre-recorded or artificial voice requiring prior express consent under the TCPA. On February 8, 2024, the FCC adopted a Declaratory Ruling affirming that an AI-generated voice on a robocall is “an artificial or pre-recorded voice” under the TCPA and the TCPA regulations (47 C.F.R. § 64.1200).  As such, AI-generated calls cannot evade TCPA coverage.  See also NCLC’s Federal Deception & Abuse Law § 6.3.2.

2. FCC Considers Additional Protections for AI-Generated Robocalls 

In July 2024, the FCC issued a Notice of Proposed Rulemaking (NPRM) requesting comments on whether additional consumer protections should be applicable when artificial intelligence (AI) is used in calls and texts. The NPRM defines the term “AI generated call,” and proposes to require specific consent for these calls, as well as an in-call disclosure that AI would be used in the call. NCLC filed comments on behalf of 26 national, state, and local consumer and privacy advocates urging the FCC to require specific consent and an in-call disclosures of the use of AI in interactive conversations.  The comments also oppose a proposal to permit telephone providers to deploy systemwide AI technology that would enable network-level surveillance of all calls on an opt-out basis.

3. Revocation of Consent Clarified 

On February 15, 2024, the FCC issued a Final Rule codifying that consumers can revoke consent through any reasonable means, and providing examples of some ways that clearly would meet that standard, such as by saying or texting the words “stop,” “quit,” “end,” ​“revoke,” “opt out,” “cancel,” or “unsubscribe.”  See 89 Fed. Reg. 15,756 (Mar. 5, 2024).  A “totality of the circumstances” analysis should be used to determine if consent was revoked. Once a consumer has opted out, the caller/texter is permitted to send a single text confirming the opt-out (which may not include any marketing). A business has 10 days to honor the request. The effective date for this regulation is April 11, 2025. See also NCLC’s Federal Deception & Abuse Law § 6.4.5.5.1.

4. The One-to-One Consent Rule Is Now Vacated

One of the most significant recent FCC rulings on the TCPA, were it to go into effect, would dramatically narrow what qualifies as consumer consent for telemarketing calls, thus potentially protecting consumers from billions of unwanted telemarketing calls.  Of the approximately 4.5 billion robocalls to U.S. telephones each month, about a third are telemarketing calls.  But, as described below, the Eleventh Circuit has vacated the rule and sent it back to the FCC.

The new rule, announced in December 2023, would have closed what is referred to as the “lead generator” loophole by requiring that telemarketers obtain one-to-one consent from consumers for telemarketing calls that use a prerecorded or artificial voice. The rule was originally scheduled to be effective January 27, 2025, one year after its publication in the Federal Register. See 89 Fed. Reg. 5098 (Jan. 26, 2024).

Under the rule, telemarketing calls would have been legal only if the consumer had given prior express written consent to receive calls from a particular seller.  The rule would not allow a single consent to apply to multiple telemarketers.

The order would have provided that prior express written consent to receive prerecorded telemarketing calls to a cell phone or residential line could only be given to one identified seller at a time. A consumer’s single click on a lead generator’s website could not authorize prerecorded telemarketing calls on behalf of multiple sellers. The order also emphasized that this one-to-one consent through agreements between the consumer and the seller is already required for calls to lines registered on the do-not-call list, and it reiterated the requirement that electronic transactions in which consent is obtained must comply with the federal E-Sign Act.  See NCLC’s Federal Deception & Abuse Law § 6.4.5.1. Consumer groups, 26 state attorneys general, and the telecom industry all agree that the regulation would have eliminated a large number of illegal and unwanted telemarketing calls.

On January 24, 2025, the Eleventh Circuit vacated the rule. See Insurance Marketing Coalition Limited v. Federal Communications Commission, 2025 WL 289152 (11th Cir. Jan. 24, 2025). The Eleventh Circuit held “We conclude that vacatur is appropriate here. The FCC has impermissibly exceeded its statutory authority by attempting to redefine ‘prior express consent’ to include the additional restrictions.” It is too early to predict what the next steps regarding this rule will be.

5. Supreme Court Hears TCPA Case on Hobbs Act 

The U.S. Supreme Court granted certiorari in McLaughlin Chiropractic Associates, Inc. v. Mckesson Corp., 2024 WL 4394119 (U.S. Oct. 4, 2024) and heard oral argument on January 21, 2025, to consider the question whether the Hobbs Act, 28 U.S.C. § 2342, requires a district court to accept the FCC’s legal interpretation of the TCPA. In other words, in private TCPA litigation, can the parties challenge the correctness of an FCC interpretation relevant to the case, or is the court required to follow the interpretation?

The Hobbs Act provides that jurisdiction to determine the validity of final FCC orders is vested exclusively in the U.S. Courts of Appeal through a petition filed within 60 days after the entry of the order. 28 U.S.C. § 2344.  See NCLC’s Federal Deception and Abuse Law § 6.2.5.1.1. The issue before the Supreme Court is whether this applies only to an action against the FCC facially challenging its interpretation, or also applies where, in a private litigation, a party, well after 60 days after the order entry, asks a federal district court to disregard an FCC interpretation for purposes of that case. Also, before the Court are the questions (1) whether the result is the same if the FCC rule is only interpretive (as in the case before it) rather than legislative and (2) assuming that challenges to FCC interpretations can be brought in private litigation, whether plaintiffs may assert them as well as defendants.

The case before the Supreme Court is an appeal from a Ninth Circuit decision that a district court did not abuse its discretion in decertifying a TCPA class action involving unwanted faxes, because the FCC in 2019 had issued a declaratory ruling that the TCPA does not apply to online fax services. Because of that ruling, the district court concluded that there was no viable way to distinguish class members who had received a fax from a machine (with viable TCPA claims) from those who received the fax via an online service (to whom the TCPA did not apply). Despite the plaintiff’s claim that the FCC fax interpretation should be overturned, the Ninth Circuit held that the district court must afford “absolute deference” to the FCC interpretation. True Health Chiropractic, Inc. v. McKesson Corp., 2023 WL 7015279 (9th Cir. Oct. 25, 2023).

6. Consent Decree for Caller ID Spoofing in Violation of STIR/SHAKEN Rules

In August 2024, the FCC entered into a notable consent decree with Lingo Telecom, LLC, for its failure to follow the FCC’s Caller ID Authentication rules, 47 C.F.R. § 64.6301(a) (part of a set of standards referred to by the acronym STIR/SHAKEN.  The case involved thousands of calls that were sent out with spoofed caller IDs, that is, where the caller ID does not match the caller.  The consent decree requires Lingo Telecom to pay a $1,000,000 civil penalty and implement a robust compliance plan under the STIR/SHAKEN framework.

The STIR/SHAKEN standards require telecom companies to meet certain criteria before attesting to a given level of reliability as to a caller ID.  The level of reliability assigned by a voice service provider signifies “what it knows about the identity of the calling party,” and therefore how much trust downstream providers can ascribe to the caller ID number.  In this case, Lingo incorrectly attested to the “A” level of reliability without independently verifying whether the caller ID numbers used by its customer belonged to the customer, and instead just relied on the customer’s statement to that effect.

The consent decree suggests stepped-up enforcement of the FCC’s STIR/SHAKEN rules that are intended to protect consumers from illegal spoofed calls by enabling authenticated caller ID information to travel securely with the call itself through the entire IP-enabled call path.  There is no private right of action under STIR/SHAKEN, but being able to identify the caller is central to much TCPA litigation, which is facilitated by STIR/SHAKEN.