On August 28, 2015, the Consumer and Governmental Affairs Bureau, acting under the authority of the Federal Communications Commission (FCC), issued an order granting over 100 petitioner requests for retroactive waiver of the FCC's fax opt-out notice requirements. As a result of the order, the petitioners will not be subject to FCC enforcement or Telephone Consumer Protection Act (TCPA) liability for sending non-compliant fax advertisements (i.e., faxes that did not include the required opt-out information). The FCC held that the petitioners receiving the waiver were similarly situated to earlier petitioners granted retroactive waivers by the FCC in October, 2014. Specifically, the petitioners pointed to the prior confusion caused by a discrepancy between the TCPA as amended and the FCC rules interpreting the TCPA, and that the rules did not explicitly state that the FCC expected an opt-out notice on fax advertisements sent with the prior express permission of the recipient.

The FCC reiterated, however, that the waivers only provide relief through April 30, 2015. Non-compliant faxes sent after that date are still subject to FCC enforcement and TCPA liability. Moreover, the new order does not resolve the issue of whether any of the petitioners actually obtained consent to send the fax advertisements that allegedly failed to include the required opt-out information. Whether any of the petitioners had the prior express permission of the recipients to send the faxes remains a question for triers of fact in private litigation.

The TCPA prohibits the sending of unsolicited faxes, unless the sender has an established business relationship with the sender and the fax number was provided voluntarily by the recipient. Unsolicited faxes are those which are sent without the "prior express invitation or permission" of the recipient. The statutory damages for any single violation of the TCPA is $500 per single fax, or $1,500 per fax where the plaintiff can show the fax sender violated the TCPA knowingly and willfully. The potential damages in a class action covering every fax recipient can be significant. It is therefore critical that companies sending fax advertisements sufficiently track and document the receipt of consumer consents in order to preserve the ability to establish consent in the event of a claimed violation of the statute. Companies also need to implement procedures to ensure that consumers who withdraw consent or opt out from receiving future faxes do not receive additional faxes.

View the full text of the FCC's August 28 order.