On April 28, 2017, the class action plaintiff petitioners in Bais Yaakov of Spring Valley et.al. v. FCC, No. 14-1234, sought en banc review of the D.C. Circuit Court’s decision to vacate the FCC’s October 30, 2014 Fax Advertisement Waiver Order.  The court found that the FCC’s 2006 Solicited Fax Rule was unlawful to the extent that it required opt-out notices on faxes sent with the recipient’s consent (i.e., “solicited” faxes), attempted to enforce the rule, and granted retroactive waivers to certain parties of the opt-out notice requirement.  In support of their request, the class action plaintiff petitioners argue primarily that the decision “radically conflicts with decades of the Supreme Court’s and this Court’s Chevron step one precedent” when it concluded that the FCC did not have the authority to apply its rules to solicited faxes.  They assert that this decision could have a wide-reaching effect of parties “flood[ing]” the court with appeals claiming that agency rules and decisions “are invalid simply because Congress authorized such regulations in a different context but not in that particular context, or because Congress did not specifically authorize those regulations.”  On May 5, 2017, the court issued an order requiring the class action defendant petitioners in the case to file a joint response to the request for en banc review within 15 days. Their brief will be due on Monday, May 22.