The Federal Communications Commission (FCC) recently issued an order finally clarifying that opt-out notices are required in solicited facsimile advertisements. In doing so, the FCC recognized the confusion caused by its prior orders and commentary, granting the petitioning entities a retroactive waiver of the opt-out notice requirement and a six-month window within which to come into compliance. The FCC also expressly invited all similarly situated entities to seek the same waiver and compliance window and instructed that such requests should be filed within six months of its order, issued on October 30, 2014.
The FCC was faced with an application for review of a Consumer and Governmental Affairs Bureau (Bureau) order and more than 20 petitions filed by various entities. The petitioners collectively challenged 47 CFR 64.1200(a)(4)(iv), which requires opt-out notices in facsimile advertisements sent with the recipients’ prior express permission. The petitioners primarily argued that Section 227(b) of the Telephone Consumer Protection Act (TCPA) applies only to “unsolicited advertisements” and therefore could not be the statutory basis for such a rule. The petitioners also contended that the FCC offered confusing and conflicting statements regarding the applicability of the rule to solicited facsimile advertisements.
The FCC rejected the petitioners’ primary argument and held that it had authority to issue the rule under Section 227(b). Specifically, the FCC held that inclusion of the opt-out notice in solicited facsimile advertisements was necessary to determining whether the sender retains the recipient’s prior express permission or is otherwise sending, or will send in the future, an “unsolicited advertisement.” The FCC “directed” the Bureau to conduct outreach to inform potential senders of its “reconfirmed requirement” to include opt-out notices in solicited facsimile advertisements.
However, the FCC found that there was cause for the petitioners’ confusion since it did not explicitly state during its rulemaking that it contemplated an opt-out requirement for solicited facsimile advertisements and had previously issued an order stating that “the opt-out notice requirement only applies to communications that constitute unsolicited advertisements.” Consequently, the FCC granted the petitioners a retroactive waiver of the rule and a six-month window from the date of the order to come into compliance.
The FCC was clear that the waiver applies only to facsimile advertisements sent to recipients who granted prior express consent and does not apply to unsolicited facsimile advertisements or facsimile advertisements sent in the context of an existing business relationship but without the recipient’s prior express consent.
Critically, the waiver and compliance window apply only to the named petitioners. However, the FCC invited similarly situated entities to request the same waiver and compliance window, noting that such applications should be filed within six months of the order. Ballard Spahr’s TCPA Task Force can assist such entities with the application process.
