WASHINGTON (Legal Newsline) - A decade-old
Federal Communications Commission (FCC) rule and a 2014 change to that
rule will be revisited to determine exactly which type of advertising faxes
require an opt-out message under the Telephone Consumer Protection Act.
In May 2006, the FCC promulgated new rules in regards to fax advertisements.
The FCC ruled any fax advertisement must include an opt-out notice,
whether the recipient had already given permission to get the ad or not.
However, a footnote deemed confusing said that the opt-out notice requirement
only was applicable to unsolicited advertisements.
To clear up
the confusion, the FCC issued another order in October 2014 that acknowledged
the confusion caused by the 2006 rule change. The FCC issued retroactive
waivers of compliance with the opt-out requirement when the sender had
expressed prior permission to send a fax advertisement. Anyone who failed to
comply with the requirements up to six months before Oct. 30, 2014 was provided
with a waiver. Applications for waivers were taken until April 2015.
“In order to
determine what a fax ad must include under the Telephone Consumer Protection
Act, one must first determine whether the fax ad is considered ‘unsolicited’
or ‘permissive,’” BakerHostetler law firm partner Casie Collignon told Legal
“Conversely, where a sender receives prior express invitation or
permission, a fax is considered to be permissive.”
confusion may have been erased, petitions ensued. The U.S. Court of
Appeals for the District of Columbia has recently combined 13 separate
petitions challenging the 2014 FCC order into a solitary action.
The Yaakov v. Federal Communications Commission
case raised two primary challenges to the FCC order. One, the petitioners say the TCPA unambiguously prohibits the FCC from requiring advertisers to include
an opt-out notice on fax advertisements that were sent with prior invitation or
permission as a way to prevent future unsolicited faxes.
reason for the challenge is to argue against the FCC’s authority to
retroactively waive violations of the opt-out notice requirements.
senders have obtained voluntary consent to send such advertisements by express
invitation or permission, revoking consent would not be impractical for
recipients because they have communicated directly with the send and are, thus, aware of the identity and contact information, which is not necessarily the
case with unsolicited fax ads,” Collignon said.
“Further, the express terms of
the TCPA address only unsolicited ads. For these reasons, I think it would serve
the purpose of the TCPA if the D.C. Circuit were to invalidate the 2014 FCC order.”
arguments begin Nov. 8, it won’t just be the FCC and the 13 petitioners who
are watching the case with interest. There are putative class action cases
across the country that have sought stays based on how this case turns out.
example, the St. Louis Heart Center Inc.
v. Athena Health, Inc. case has been stayed because the plaintiff’s
putative class had solicited and unsolicited ads, the defendant had provided
sufficient evidence to prove the faxes could have been sent with prior
permission and the Yaakov v. FCC case out come could impact any class
certification decision because it was specifically relevant to the
determination of commonality.
to the 13 separate petitions that were consolidated in the Yaakov v. FCC case
itself, BakerHostetler was able to identify at least two other cases that have
been stayed pending the outcome of the Yaakov decision,” Collignon said.
“However, it’s very difficult to estimate how many other cases are actually
waiting on this decision nationwide because most of the cases are pending in