On November 14, 2018, the Federal Communications Commission ("FCC") issued an order ("2018 Order") formally eliminating the requirement that opt-out notices must be included on faxes sent with the recipients' prior consent pursuant to the Telephone Consumer Protection Act ("TCPA"). The FCC's new TCPA law guidance appears to be in direct response to the decision from the D.C. Circuit Court of Appeals in Bais Yaakov of Spring Valley, et al. v. FCC, which held that the FCC lacked the power to issue a ruling purporting to dictate the content of solicited—as opposed to unsolicited—faxes. On that basis, the D.C. Circuit struck down certain portions of the FCC's 2006 Junk Fax Rule as invalid.
What is the current state of the FCC's Rulemaking Authority?
The Junk Fax Rule and TCPA Law
Congress delegated to the FCC the power to interpret, implement, and enforce the TCPA. Importantly, however, it is possible that the FCC's TCPA law rulemaking authority may no longer be afforded deference in the near future. As we recently blogged, the United States Supreme Court has recently granted certiorari to review whether the FCC's definition of "unsolicited fax advertisement" is entitled to deference by federal district courts under the Hobbs Act. The impact of the Supreme Court's decision in that case could call into question whether FCC-issued TCPA law rulemakings should be afforded deference by federal district courts.
In the meantime, the FCC's new TCPA law guidance will allow businesses who have consent or permission from fax recipients (i.e., solicited faxes) to send fax advertisements without having to include opt-out notices. Notably, the FCC issued this TCPA law rulemaking without the typical notice and comment period. The FCC proceeded in this fashion because, as stated above, the D.C. Circuit last year vacated that portion of the 2006 Junk Fax Rule applicable to solicited fax opt-out notices as unlawful. In its order of last week, the FCC reasoned that "in light of the court's decision that the rule is unlawful, we eliminate section 64.1200(a)(4)(iv) from Title 47 of the Code of Federal Regulations."
TCPA Law – Fax Advertisements Going Forward
The TCPA regulatory mandates applicable to fax marketing are both nuanced and technical. The FCC's Order eliminating the requirement for opt-out notices on fax advertisements is limited to faxes sent with consent from the recipient. Importantly, unsolicited fax advertisements are still required to include opt-out notices. In addition, if a fax recipient elects to opt-out, fax advertisements should no longer be sent to the applicable individual/entity. Given the evolving TCPA law landscape, it is imperative for businesses operating in this space to work closely with knowledgeable counsel prior to engaging in any fax marketing campaign.
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