FCC Rules that Solicited Fax Advertisements Still Require Opt-Out Language

The Federal Communications Commission (“FCC”) released an Order on October 30, 2014, sustaining its rule that advertisements faxed with the recipient’s prior express consent must include a notice with instructions for how to opt-out of future faxes. 1

The Order responds to numerous petitions that argued the Telephone Consumer Protection Act’s (“TCPA”) “junk fax” provision and opt-out requirement apply only to “unsolicited” fax advertisements, and thus do not cover faxes “solicited” by those who consent to receive the faxed advertisements. 

The FCC noted that its previous Order adopting the rule may have been confusing, and the agency granted retroactive waivers to petitioners with temporary relief from any past requirement to have opt-out notices on solicited faxes. 

Specifically, a footnote in the Junk Fax Order stated that the “opt-out notice requirement only applies to communications that constitute unsolicited advertisements.”  The word “unsolicited” caused some parties to misinterpret the FCC’s intent to apply the opt-out notice to fax advertisements sent with the prior express consent of the recipient.

The FCC found that granting a retroactive waiver would serve the public interest and noted that “the TCPA’s legislative history makes clear our responsibility to balance legitimate business and consumer interests.” 

The retroactive waiver includes all individuals that failed to include the opt-out language in fax advertisements sent with the prior express consent of the recipient, as required by 47 C.F.R. § 64.1200(a)(4)(iv).  From the time of the release of the Order, parties have six months to fully comply with the opt-out requirement.

The FCC plans to reach out to other potential senders to inform them of the reconfirmed requirement to include an opt-out on fax advertisements.  The FCC will also allow other similarly situated parties to seek retroactive waivers by April 30, 2015.

1 See http://transition.fcc.gov/Daily_Releases/Daily_Business/2014/db1030/FCC-14-164A1.pdf.