April 30, 2015, is the anticipated deadline for anyone seeking a waiver to the US Federal Communications Commission (FCC) "Blast Fax" opt-out rules.
On October 30, 2014, the FCC issued its much anticipated Order that all fax ads, even those sent with a customer's prior express consent or permission, i.e., "solicited" fax advertisements, contain an opt-out notice. The FCC acknowledged that parties could be "reasonably uncertain" under its prior Orders as to whether all of the requirements for an "opt-out" were necessary on fax ads to recipients that had provided prior consent. The FCC agreed to grant retroactive waivers to the petitioners (24 individuals) that did not include fully compliant opt-out notices, providing them with six months to come into compliance with the rule. The waivers provide temporary relief from any past obligation to provide opt-out notices to fax recipients as required by the FCC rules (essentially, a "get out of jail" free card) on solicited fax ads. Of note, the waiver does not extend to inadequate notices on fax ads sent pursuant to a prior existing business relationship. Nor does the waiver apply to unsolicited fax ads which are unlawful.
The FCC will allow any other companies, who mistakenly failed to provide an opt-out notice or sent incomplete opt-out notices to consenting recipients, to petition the FCC for similar waivers by April 30, 2015. Companies that did not provide adequate opt-out notices should immediately request waivers.
Going forward, the FCC's rules require that a faxed advertisement sent to a recipient who has provided prior express invitations or permission to the sender must include an opt-out notice that complies with the requirements of Section 47 CFR Section 64.1200(a)(4)(iii). The rules specify that the opt-out notice contained in fax ads must:
(1) be clear and conspicuous and on the first page of the ad;
(2) state that the recipient may make a request to the sender not to send any future ads and that failure to comply, within 30 days, with such a request is unlawful; and
(3) contain a domestic contact telephone number and fax number for the recipient to transmit an opt-out request. Fax ads sent pursuant to an established business relationship must also contain this opt-out information.
The FCC's decision clarifies persistent confusion around the applicability of the FCC rules to "solicited" fax ads, resulting in a backlog of pending petitions in the DC Circuit requesting clarification of the "Blast Fax" provisions.
Since 2006, the FCC "Blast Fax" rules require opt-out information to be displayed on the first page of a fax ad, with notification requirements for both solicited and non-solicited faxes. Recipients of faxed ads who may have given prior consent complained that the faxed ads lacked any or all of the required FCC opt-out information, resulting in a tsunami of litigation. Defendants, who faced potential statutory penalties sought relief and clarification of the opt-out requirements from the FCC.
Three petitioners have appealed the Order challenging the regulatory authority of the FCC. (These suits have been consolidated in the DC Circuit Court of Appeals).
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