Continuing the good news for TCPA defendants on the fax front, the U.S. Court of Appeals, D.C. Circuit refused to postpone its invalidation of the FCC's Solicited Fax Rule pending an appeal to the Supreme Court.
The federal appellate panel struck down the rule in March. Created in a 2006 FCC order, the rule required that even fax advertisements sent with a recipient's prior express invitation or permission contain an opt-out notice with specified information.
Over the years, dozens of companies were granted waivers from compliance with the rule. One TCPA defendant—a pharmaceutical company facing the potential of $150 million in liability for allegedly failing to include the required opt-out notice in a series of faxes sent to consenting recipients—challenged the rule in a petition to the FCC.
When the agency upheld the rule, the pharmaceutical company sought review from the D.C. Circuit, joined by several other parties on both sides of the issue. Concluding that "Congress drew a line in the text of the statute between unsolicited fax advertisements and solicited fax advertisements," the panel tossed the rule.
The plaintiffs appealed the decision to the en banc D.C. Circuit, which issued a one-sentence order denying the petition without further comment.
Appealing again, the plaintiffs filed a writ of certiorari with the Supreme Court. Waiting to hear whether the justices agree to take the case, the plaintiffs also requested that the D.C. Circuit postpone the impact of its ruling pending a grant or denial of cert.
But again wasting little ink, the court issued a one-sentence denial in a per curiam order, leaving in place its March opinion striking down the rule.
To read the order in Bais Yaakov of Spring Valley v. FCC, click here.
Why it matters: The D.C. Circuit's denial of a stay means its earlier opinion finding the rule invalid remains in effect, a victory for TCPA defendants. The only obstacle in the way of companies leaving out the previously required information is the small chance that the Supreme Court grants certiorari in the case.
For further information on this topic please contact Christine Reilly at Manatt Phelps & Phillips LLP by telephone (+1 310 312 4000) or email ([email protected]). The Manatt Phelps & Phillips LLP website can be accessed at www.manatt.com.
This update has been reproduced in its original format from Lexology – www.Lexology.com.