FCC Confirms ‘Opt-Out’ Notice Requirement for All Fax Advertisements

By Molly K. McGinley, Nicole C. Mueller, and Joseph C. Wylie II

The Federal Communications Commission recently released an Order in response to multiple petitions confirming that opt-out notices are required on all advertisements transmitted by facsimile, even those sent with the prior express permission of the recipient.  The FCC also granted retroactive waivers to petitioners that were reasonably uncertain, based on ambiguities in a 2006 Report and Order modifying the FCC’s junk fax rules, about whether the opt-out notice requirement applied to faxes sent at the invitation of the recipient.  The FCC indicated that it would also entertain retroactive waivers requests from similarly situated parties filed prior to April 30, 2015.

Prior to 2006, courts regularly held that faxes sent with “prior express invitation or permission” were not prohibited by the Telephone Consumer Protection Act of 1991 (“TCPA”) or the FCC’s then-existing junk fax regulations, and were not required to bear opt-out notices.  In 2006, following amendments to the TCPA under the Junk Fax Prevention Act of 2005, the FCC adopted its 2006 Junk Fax Order, which required that a fax advertisement “sent to a recipient that has provided prior express invitation or permission to the sender must include an opt-out notice.”  The 2006 Junk Fax Order also contained a footnote stating that “the opt-out notice requirement only applies to communications that constitute unsolicited advertisements.”  Based on this ambiguity, many class actions were brought challenging a defendant’s failure to include a compliant opt-out notice on faxes transmitted with prior express permission.

In response to multiple petitions for declaratory ruling arguing, among other things, that there was uncertainty over the scope of and statutory basis for the provision in the FCC’s junk fax rules added in 2006 requiring opt-out notice on solicited facsimiles, the FCC confirmed that its junk fax rules require that all fax advertisements contain a fully compliant opt-out notice, even those that may have been solicited by the recipient.  Acknowledging the ambiguity in its 2006 Junk Fax Order, the Commission, however, granted the limited retroactive waiver to various petitioners and provided an opportunity for others to seek retroactive waivers through April 30, 2015.  A K&L Gates client alert providing a more detailed discussion of this recent FCC order is available here.

K&L Gates recently presented a live webcast on the TCPA entitled “Telemarketing and the Telephone Consumer Protection Act–Avoiding Traps and Minimizing Risk.”  The following is a link to access the webcast and the PowerPoint materials. The webcast provided a practical overview of the TCPA and its future implications, and was designed for executives and legal or compliance professionals in the marketing, advertising, telemarketing, telecom and media, mortgage servicing, and collection sectors, as well as executives in any other businesses that use telephone systems to communicate with customers.

Copyright © 2019, K&L Gates LLP. All Rights Reserved.