On October 30, 2014, the Federal Communications Commission (“FCC”) issued an order requiring opt-out information on all fax advertisements, even when the recipient has previously consented to receiving the ads. A footnote in the 2006 Junk Fax Order referenced “unsolicited” faxes, which led some companies to believe that the Order did not apply to faxes sent to persons that have given prior express permission. In its recent Order, the FCC stated that consumers need an easy and costfree way to opt out if they should ever change their minds about receiving faxes, and therefore requires all fax ads – including those sent to persons who previously consented – to meet the opt-out notice requirements of the original 2006 Order. These requirements include: (1) a clear and conspicuous notice of opt-out on first page of ad; (2) a cost-free opt-out; and (3) a 30-day window to comply with an opt-out request.
Acknowledging possible confusion about the requirements for ads sent to previously consenting persons, the FCC issued retroactive waivers to some fax advertisers for a lack of opt-out information on previous transmittals. These advertisers now have six months to come into compliance with the regulations. In the meantime, other “similarly situated parties” may seek waivers to cover past noncompliance.