On 30 October the Federal Communications Commission (FCC) granted relief to 24 petitioners regarding certain Telephone Consumer Protection Act (TCPA) rules applicable to fax advertisements. Specifically, the Order gives the petitioners a limited, retroactive waiver of the FCC’s opt-out notice requirements for fax advertisements that were sent with the “prior express invitation or permission” of the recipient but that did not comply with the FCC’s opt-out notice requirements.
As background, the FCC generally requires that the senders of fax advertisements include an express opt-out notice with each fax. However, there was some confusion over whether the opt-out rules still applied when the recipients of fax messages had expressly consented to receiving the advertisements. Several companies (some of whom were represented by Hogan Lovells) asked the FCC to clarify its rules. The petitioners each sought a Declaratory Ruling or other relief clarifying that the FCC’s opt-out notice requirements for fax advertisements do not apply to faxes sent with the “prior express invitation or permission” of the recipient, arguing primarily that: (1) the FCC lacked the statutory authority to mandate opt-out notifications for such “solicited” faxes; (2) the FCC’s rules and implementing decision are unclear and contrary to Congressional intent; and (3) interpreting the FCC’s rule to apply to solicited faxes would raise significant First Amendment concerns.
Although the FCC disagreed with these arguments, it determined that a waiver of the rules was in the public interest for these petitioners, due to a footnote in an earlier Order that “may have caused some parties to misconstrue the Commission’s intent to apply the opt-out notice to fax ads sent with the prior express permission of the recipient.” In addition, the FCC said that parties may not have been explicitly notified of the FCC’s intent to adopt opt-out requirements for faxes sent with prior consent. The FCC emphasized that the waiver was only temporary, and that waiver recipients would be required to come into compliance with the opt-out notice requirements within six months of the release of the Order.
Commissioners Pai and O’Rielly dissented in part, noting in particular that the FCC lacks the statutory authority to require opt-out notices for solicited faxes.
While limited to fax advertisements, the FCC’s Order provides useful insight on how broadly the FCC interprets its authority in the consumer protection context. Although the order is applicable only to the 24 petitioners, the FCC said that other similarly situated parties may request a waiver. The FCC requested that waiver requests be filed by April 30, 2015.