Last week, the United States Court of Appeals for the District of Columbia Circuit (the “DC Circuit”) struck down a Federal Communications Commission (“FCC”) rule promulgated under the Telephone Consumer Protection Act (“TCPA”) which regulates fax advertisements. The telemarketing industry rejoiced as the DC Circuit struck a key provision of the FCC’s “Solicited Fax Rule.” The TCPA fax rule imposed an obligation on marketers to prominently display “opt-out” information on all solicited fax advertisements. Unable to find statutory support in the language of the TCPA, the DC Circuit found that the FCC had overstepped its authority in imposing this rule.

Why did the DC Circuit Strike Down the Solicited Fax Requirement?

As the DC Circuit explained in its opinion, the language of the TCPA expressly makes it unlawful to send unsolicited fax advertisements to consumers. The Court also observed that the TCPA provides an exception to the rule, allowing “a business to transmit an unsolicited fax advertisement when, among other things, the fax ‘contains a notice’ that the recipient may opt out from ‘future unsolicited advertisements.’” This language, however, did not give the FCC the authority to impose regulations on solicited fax advertisements. Thus, where a consumer or business entity has provided prior express consent to receive advertisements from the subject marketer, failing to include opt-out information on a fax advertisement will not violate the TCPA fax regluations.

There is no indication as to whether the FCC will appeal this ruling to the United States Supreme Court.

Protect Yourself: Consult with a TCPA Attorney Today Concerning the TCPA Fax Regulations

We have previously provided tips to fax marketers on how to avoid liability under the TCPA. The DC Circuit’s opinion validates the concerns of TCPA attorneys who have often complained that the FCC’s Solicited Fax Rule has no foundation in the language of the TCPA. Despite this victory, however, marketers should be aware that opt-out notices are still required for unsolicited fax advertisements, even if there is a pre-existing businesses relationship between the parties.