Last Friday, the Federal Communications Commission (the “FCC” or “Commission”) granted retroactive Telephone Consumer Protection Act (“TCPA”) waivers to 117 marketers that allegedly delivered fax advertisements without mandatory opt-out information. The Commission issued the waivers in large part due to an FCC drafting error in 2006.
Are all marketers off the hook for sending non-compliant fax ads?
Prior FCC Orders
In 2006, the FCC adopted an order amending the rules concerning fax transmissions as required by the Junk Fax Prevention Act (the “Junk Fax Order”). As part of the Junk Fax Order, the Commission adopted a rule requiring fax advertisements to include opt-out notices.
In 2014, the Commission addressed 23 petitions – filed by Best Buy, Staples, CARFAX and others (the “2014 Order”) – alleging that the Junk Fax Order contained confusing and conflicting statements regarding the applicability of the opt-out notice rule to solicited faxes. Specifically, the petitioners sought TCPA waivers due to an inconsistency between a footnote contained in the Junk Fax Order and the FCC’s adopted opt-out notice rule regarding the applicability of this requirement to faxes sent to recipients who had provided their prior express permission.
The 2014 Order granted limited TCPA waivers to these petitioners, finding that they had established good cause for their reasonable confusion (or misplaced confidence).
More TCPA Waivers, with Limitations
On August 28, 2015, the Commission issued an order (DA 15-976) granting TCPA waivers to 117 new petitioners along the same lines as the 2014 Order. Under the recent FCC order, the petitioners qualify for limited retroactive waivers if they did not include the requisite opt-out notice on fax ads delivered on or before April 30, 2015, provided that fax recipients provided their prior express consent to receive commercial faxes from the respective petitioners.
Importantly, the Commission stressed last Friday that the limited TCPA waivers “shall not apply to such conduct occurring after April 30, 2015, nor shall [they] apply to any situation other than where the fax sender had obtained the prior express invitation or permission of the recipient to receive the fax advertisement.”
Finally, the FCC made clear that the opt-out notice mix-up/loophole is now officially closed, stating that “full compliance with the requirement to provide an opt-out notice on fax ads sent with the prior express permission of the recipient is expected now that any potential for confusion on this point has been addressed and interested parties have been given additional notice of this requirement.”
Make Sure Your Fax Ads Are TCPA-Compliant
Last week’s FCC ruling indicates that the Commission is done letting businesses off the hook with TCPA waivers for unlawful fax advertising practices. Marketers risk substantial liability by not ensuring that their commercial fax messages, whether traditional fax or efax, are entirely compliant with the TCPA and its implementing regulations.