WASHINGTON (Legal Newsline) – It appears unlikely that the U.S. Supreme Court will review a judgment that says the Federal Communications Commission does not have the authorization to require businesses to include an “opt-out” notice on solicited fax advertisements.

“I would be surprised if the Supreme Court took up this issue because the reasons typically justifying Supreme Court review are just not present,” attorney Justin O’Neill Kay told Legal Newsline.

Justin O. Kay
Justin O. Kay

Kay, an attorney with the Chicago-based law firm of Drinker Biddle & Reath, is experienced in cases involving the Telephone Communications Protection Act, originally passed in 1991. The act prohibits the sending of “unsolicited” facsimile or fax advertisements advertising property, goods or services without the recipient’s approval written or otherwise.

In 2005, Congress amended the TCPA with the Junk Fax Act addition, creating an exception to the rule to permit an unsolicited fax advertisement to be faxed to a recipient if the sender and the recipient have an “established business relationship,” or EBR, and if opt-out language is included in the fax.

A 2006 order by the FCC, however, sought to require opt-out language on both EBR faxes and solicited fax advertisements.

“Plaintiffs’ attorneys seized on this and began filing lawsuits claiming that even though their clients specifically requested faxes, they were entitled to damages of $500 to $1,500 per fax because those faxes did not include the specific opt-out language,” Kay said.

Defendants sought relief from the FCC, and in 2014 a divided FCC (a three-Democrat majority versus two Republican dissenters) issued an order that the FCC had the authority to require opt-out notices on solicited fax advertisements. Kay noted that the FCC had agreed its 2006 decision was unclear and granted waivers of the requirement to individuals and entities.

The plaintiffs included Bais Yaakov, a Jewish Orthodox elementary and secondary school in New York. The defendants included Anda, a generic drug company. Both sides appealed. The cases were consolidated in the U.S. District Court for the District of Columbia.

On Jan. 16, the FCC and defendant companies being sued over alleged violations of the TCPA urged the U.S. Supreme Court to reject an earlier petition filed by the plaintiffs seeking a review of a March 2017 U.S. Court of Appeals for the D.C. Circuit decision.

“The D.C. Circuit disagreed with the FCC and held that although the act requires an opt-out notice on unsolicited fax advertisements, it does not require a similar opt-out notice on solicited fax advertisements,” Kay said. “Nor does it grant the FCC authority to require opt-out notices on solicited fax advertisements.”

Plaintiffs had typically sought to certify classes in TCPA fax lawsuits because a class eliminated the individual issue of whether a fax was solicited nor not.

“When the D.C. Circuit eliminated the opt-out notice requirement for solicited faxes, plaintiffs’ attorneys were faced with a much tougher hill to climb,” Kay said. “District courts have already started using the decision to deny certification of such classes. That’s why the plaintiffs are seeking Supreme Court review; it’s a case-killer.”

Kay said the FCC no longer supports the plaintiffs’ interpretation in the class action because with the advent of the Trump Administration, there is a Republican majority on the FCC.

“The dissenting view is now the official (FCC) position that Congress did not authorize the FCC to require opt-out notices on solicited fax advertisements,” he said.  

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