By its express terms, the Telephone Consumer Protection Act
(TCPA) applies only to unsolicited faxes. 47 U.S.C. §
227(b)(1)(C) & (a)(5). However, in May 2006, the FCC
promulgated new rules concerning fax advertisement transmissions
that stated that "[a] facsimile advertisement . . . sent to a
recipient that has provided prior express invitation or permission
to the sender must include an opt-out notice." In the Matter
of Rules & Regulations Implementing the Tel. Consumer Prot. Act
of 1991 Junk Fax Prevention Act of 2005, 21 F.C.C. Rcd. 3787,
3820–21 (2006). Confusingly, the 2006 FCC rule change also
included a footnote stating that "the opt-out notice
requirement only applie[d] to communications [constituting]
unsolicited advertisements." Id. at 3818 n.154.
In October 2014, the FCC issued an order (2014 FCC Order)
recognizing ensuing confusion and ambiguity caused by the 2006 FCC
rule change. In the Matter of Rules & Regulations Implementing
the Tel. Consumer Prot. Act of 1991, 29 F.C.C. Rcd. 13998, 13998
(2014). The 2014 FCC Order stated that "some parties who have
sent fax ads with the recipient's prior express permission may
have reasonably been uncertain about whether [the] requirement for
opt-out notices applied to them." Id. Due to this
reasonable uncertainty, the 2014 FCC Order provided for the
issuance of retroactive waivers of compliance with the opt-out
requirement when the sender had express prior permission to send a
fax advertisement. Id. The waivers were provided
retroactively to those who failed to comply with these requirements
up to six months prior to Oct. 30, 2014. Id. at 14012.
Applications for waivers were accepted until April 2015.
Recently, the United States Court of Appeals for the District of
Columbia Circuit consolidated 13 different petitions challenging
the 2014 FCC Order into one action. See Brief of
Respondent, Yaakov v. Federal Communications Commission,
No. 14-1234 (D.C. Cir. Dec. 24, 2015). Petitioners in this case are
raising two main challenges to the 2014 FCC Order. First,
petitioners argue that the TCPA unambiguously prohibits the FCC
from requiring advertisers to include an opt-out notice on fax
advertisements sent with prior invitation or permission in order to
prevent future unsolicited faxes. Id. at 13. Second,
petitioners challenge the FCC's authority to retroactively
waive violations of the opt-out notice requirements. Id.
Oral arguments are currently scheduled to take place on Nov. 8,
Putative class action cases across the country have sought stays
based on the outcome of this case, and interested parties will be
watching Yaakov closely. See, e.g., St. Louis Heart
Center, Inc. v. Athena Health Inc., No. 4:15-CV-01215-AGF
(E.D. Mo.) (case stayed because: (1) the plaintiff's putative
class encompassed both solicited and unsolicited advertisements,
(2) the defendant had provided sufficient evidence to show that the
faxes could have been sent with prior permission, and (3) the
outcome of the Yaakov v. FCC case would impact any class
certification decision because it was specifically relevant to the
determination of commonality); but see Spine and Sports
Chiropractic, Inc. v. Insight Health Corp., No. 2:15-cv-3041,
2016 WL 1211330 (S.D. Ohio) (case not stayed because the FCC waiver
did not apply to unsolicited faxes and thus was inapplicable to the
case involving purely unsolicited faxes).
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