On March 31, 2017, the D.C. Circuit struck down FCC regulations requiring that solicited fax advertisements include opt-out notifications, holding that the TCPA did not grant the FCC the authority to impose such a requirement when, by its express terms, the TCPA applies only to unsolicited fax advertisements. Order, Yaakov v. Federal Communications Commission, No. 14-1234, at 4 (D.C. Cir. Mar. 31, 2017) [hereinafter Yaakov Opinion]; see also 47 U.S.C. § 227(b)(1)(C) & (a)(5); In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991 Junk Fax Prevention Act of 2005, 21 F.C.C. Rcd. 3787, 3820-21 (2006).
While the Yaakov decision was a big win for several petitioner businesses that took part in the suit, impacted parties have continued to watch the case closely to see whether the FCC will petition for certiorari. Such action seems unlikely, given a statement issued by the chairman of the FCC, Ajit Pai, on the same day as the Yaakov Opinion:
Today’s decision by the D.C. Circuit highlights the importance of the FCC[’s] adhering to the rule of law. I dissented from the FCC decision that the court has now overturned because, as I stated at the time, the agency’s approach to interpreting the law reflected “convoluted gymnastics.” The court has now agreed that the FCC acted unlawfully. Going forward, the Commission will strive to follow the law and exercise only the authority that has been granted to us by Congress.
Notwithstanding the FCC chairman’s statement, on April 28, 2017, several intervenors filed a petition for rehearing en banc, arguing that the Yaakov Opinion “irreconcilably conflicts … with binding precedent [in the D.C. Circuit] and the U.S. Supreme Court” because it (1) “ignores the general conferral of rulemaking authority ‘to implement the requirements of’ the TCPA that Congress gave to the FCC in 47 U.S.C. § 227(b)(2) …” and (2) improperly applies the “expressio unius est exclusio alterius” doctrine, “which posits that where a statute imposes a requirement in one specific situation, Congress intended to preclude an administrative agency from imposing such a requirement in other situations.” Intervenors’ Pet. for Reh’g En Banc, No. 14-1234, at 1-4 (D.C. Cir. Apr. 28, 2017). The Yaakov defendant petitioners and intervenors filed a response to the petition for rehearing on May 19, 2017, arguing that the intervenors could not “show the extraordinary circumstances that would warrant granting their request.” Class Action Def. Pet’rs’ and Intervenors’ Resp. to Pet. for Reh’g En Banc, No. 14-1234, at 2 (D.C. Cir. May 19, 2017). Unsurprisingly, in a one-sentence per curiam order, the D.C. Circuit denied the petition for rehearing on June 6, 2017. Order, Yaakov v. Federal Communications Commission, No. 14-1234, at 1 (D.C. Cir. June 6, 2017). Accordingly, it appears that the D.C. Circuit’s March 2017 ruling is here to stay.
We will continue to watch the Yaakov case closely to see whether the FCC ultimately decides to file a petition for certiorari. Any petition for writ of certiorari would be due within 90 days of the entry of the D.C. Circuit’s order denying the petition for rehearing, making that deadline Sept. 4, 2017.
For more background concerning this decision, see https://www.classactionlawsuitdefense.com/2017/04/03/d-c-circuit-may-have-finally-killed-tcpa-class-actions-over-solicited-faxes-without-opt-out-notices/ and https://www.classactionlawsuitdefense.com/2016/10/12/yaakov-v-fcc-will-tcpa-opt-out-requirements-be-stricken-for-permissive-faxes/.