D.C. Circuit Invalidates FCC’s Junk Fax Opt-Out Rule for Solicited Faxes

On March 31, 2017, the D.C. Circuit invalidated the Federal Communications Commission rule that requires businesses to include opt-out notices on solicited fax advertisements.  The court ruled that the FCC lacks authority under the Telephone Consumer Protection Act to require disclosures or to regulate communications that were sent with the recipient’s consent.

Congress enacted the Junk Fax Prevention Act in 2005, which amended the TCPA.[1]  While the JFPA bans most unsolicited fax advertisements, it allows unsolicited fax advertisements in certain commercial circumstances.  When those unsolicited fax advertisements are allowed, the law requires businesses to include opt-out notices on the faxes.[2]

But in 2006, the FCC issued a rule that requires businesses to include opt-out notices not just on unsolicited fax advertisements, but also on solicited fax advertisements.[3]  The JFPA defines “unsolicited advertisement” as “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s prior express invitation or permission, in writing or otherwise.”[4]

While Congress authorized the FCC to issue regulations to implement the JFPA,[5] the court held that the statute “does not require (or give the FCC authority to require) opt-out notices on solicited fax advertisements.”  Thus, the FCC overstepped its power when it extended the opt-out rule to solicited fax advertisements.

If you have been sued for fax disclosure violations, this case may be relevant to your defense.  Please contact me if you have additional questions on how this may affect your business practices.  The case is Bais Yaakov of Spring Valley, et al v. FCC, et al., No. 14-cv-01234 (D.C. Cir. Mar. 31, 2017).

[1] See Pub. L. No. 109-21, 119 Stat. 359 (codified at 47 U.S.C. § 227). 

[2] See 47 U.S.C. § 227(b). 

[3] See Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991; Junk Fax Prevention Act of 2005, 71 Fed. Reg. 25,967, 25,971-72 (May 3, 2006) (now codified at 47 C.F.R. § 64.1200(a)(4)(iv)).

[4] Id. § 227(a)(5)

[5] See id. § 227(b)(2).