On March 31, 2017, the United States Court of Appeals for the District of Columbia issued a decision in Bais Yaakov of Spring Valley et.al. vs. FCC (No. 14-1234), holding that the FCC’s 2006 Solicited Fax Rule is unlawful to the extent that it requires opt-out notices on faxes sent with the recipient’s consent (i.e., “solicited” faxes).  The decision also vacated the FCC’s October 30, 2014 Fax Advertisement Waiver Order insofar as it attempted to enforce the rule and grant retroactive waivers to certain parties of the opt-out notice requirement.  This decision is a big win for defendants in a recent wave of class action cases based on a failure to include opt-out notices on solicited faxes.  These defendants – nearly 150 of whom had received retroactive waivers from the FCC – now will not face liability for faxes sent with the recipient’s permission.

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On October 30, 2014, the FCC released an order that effectively resolves nearly half of the Telephone Consumer Protection Act (“TCPA”) petitions pending before it. This order addresses 24 petitions seeking clarification of the Commission’s rules requiring individuals and entities that send fax advertisements to include certain information on the fax to allow recipients to “opt-out” of receiving such transmissions in the future. The FCC denied all of the petitions insofar as they requested the FCC to rule that the “opt out” language requirement did not apply to faxes sent with the prior express consent of the recipient, but granted a retroactive waiver to the petitioners and other similarly situated parties because the scope of the opt-out requirement was previously unclear. The order thus will address a key issue in many pending TCPA class action cases. Moreover, by permitting similarly situated parties to seek the same waiver, the FCC essentially sets the stage to remove this issue from all TCPA cases involving fax transmissions. Any party facing a claim based on opt-out notices should take note of this order.
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