BOLD: Before Even Being Allowed in the Case NCLC Submits An Aggressive Challenge to Eleventh Circuit IMC Ruling

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The FCC’s TCPA one-to-one consent rule still has the faintest of pulses as the NCLC continues to struggle to bring it back to life.

In a new filing yesterday the National Consumer Law Center has submitted a proposed petition seeking a full en banc re-hearing and characterizing the Eleventh Circuit panel’s ruling in IMC v. FCC as a departure from established judicial review norms and contrary to supreme court precedent.

As the Czar previously explained the IMC ruling is, indeed, a breathtaking departure from the rules courts would ordinarily apply to such appeals. However, this change appears to have been enabled by the recent destruction of Chevron deference and concomitant strengthening of judicial review.

The issue really boils down to this:

In the old days (last year) a court had to defer to an agency’s interpretation of vague phrases in a statute. That is no longer the case.

The IMC could held, however, that an agency had to defer to a court’s interpretation of vague phrases statute. This had never happened before.

While IMC’s approach seems permissible following the death of Chevron it by no means follows that they adopted the correct framework. Under a doctrine called Skidmore deference courts and agencies are essentially equally powerful– and if Skidmore  deference were applied IMC probably would have come out differently.

NCLC’s petition argues the Eleventh Circuit Court of Appeals–all of it–should get together and decide whether Skidmore applies here or whether IMC sets a vast new paradigm for judicial review of agency action.

Part of me kind of wants to know the answer because I’m a nerd.

But on the other hand, I don’t think lead gen is capable of handling another pendulum swing on one-to-one so let’s hope this whole thing stays dead.

Anyway you can read the whole petition here: NCLC En Banc

And if any of you DON’T have the free Troutman Amin, LLP 2025 TCPA Annual Review presented by Contact Center Compliance you should ask for it right now!

WE DID IT!: WE UPDATED OUT 2025 TCPA ANNUAL REVIEW AND YOU SIMPLY MUST HAVE ONE RIGHT NOW!

Chat soon.

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Published by Eric "Czar" Troutman

The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.

1 Comment

  1. Yes, this will prove interesting to see how it plays out…

    “But on the other hand, I don’t think lead gen is capable of handling another pendulum swing on one-to-one so let’s hope this whole thing stays dead.”

    At least the legit, responsible lead gens were already ready for one-to-one since it went right down to the wire…so at least it should be easier to pivot back if need.

    Unfortunately, the majority that weren’t ready, and as such were most likely to flaunt said changes anyway (I mean they’ve been flaunting the law all along with little/no consequences) this will just embolden them to continue taking the law(s) with a grain of salt.

    Regardless this all means more sorrow for us consumers. Same sh*t, different day…

    As a reminder, just one of the too many to count examples: https://www.everquote.com/partners/

    Reply

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