Refusing to reconsider a panel decision invalidating the Federal Communications Commission’s Solicited Fax Rule en banc, the U.S. Court of Appeals for the District of Columbia Circuit moved the issue one step closer to resolution.
In a 2006 order, the FCC established the Solicited Fax Rule, which required that fax advertisements sent with a recipient’s prior express invitation or permission contain an opt-out notice with specified information. Over the years, dozens of companies were granted waivers from compliance with the rule. One Telephone Consumer Protection Act (TCPA) defendant—a pharmaceutical company facing the potential of $150 million in liability for allegedly failing to include the required opt-out notice in a series of faxes sent to consenting recipients—challenged the rule in a petition to the FCC.
When the agency upheld the rule, the pharmaceutical company sought review from the D.C. Circuit, joined by several other parties on both sides of the issue.
In March, a federal appellate panel struck down the rule.
The plaintiffs appealed the decision to the en banc D.C. Circuit, which issued a one-sentence order denying the petition without further comment.
To read the order in Bais Yaakov of Spring Valley v. FCC, click here.
Why it matters: The D.C. panel’s decision to strike down the Solicited Fax Rule was a significant victory for TCPA junk fax defendants. The en banc court’s refusal to rehear the case moves it one step closer to resolution and could sound the death knell for class actions involving solicited faxes sent without the detailed opt-out notice required by the regulations.