Remember in 2014 when the FCC decided that all advertisement fax communication must include opt-out notifications, including those that were requested or solicited? Unsurprisingly, this rule (under the Junk Fax Prevention Act’s amendment to the Telephone Consumer Protection Act) created some class action suits, which sought between $500 and $1,500 per fax, and resulted in many headaches for late adopters to this rule.
According to the National Law Review’s article published on Friday, April 7, 2017, companies can rest a bit easier now. “In a move that should put a damper on such class actions, in a 2-1 decision, the U.S. Court of Appeals for the D.C. Circuit struck down the FCC’s rule requiring opt-out notices on solicited faxes, even as to persons who have previously consented to receive faxes. The majority noted that the question it was answering was “whether the Act’s requirement that businesses include an opt-out notice on unsolicited fax advertisements authorizes the FCC to require business to include an opt-out notice on solicited fax advertisements.” Based on the text of the statute, the majority reasoned that Congress did not empower the FCC to regulate solicited faxes. It held that “Congress drew a line in the text of the statute between unsolicited fax advertisements and solicited fax advertisements” and “it is the Judiciary’s job to respect the line drawn by Congress …”
So good news for those who rely on fax communications for advertisements, from pharmaceutical companies to financial services. As the National Law Review puts it: “This ruling also brings an all too rare measure of common sense to the Junk Fax Protection Act.”
