Last Week to File for Retroactive Waiver of FCC Rule Requiring Opt-Out Notice on All Fax Advertisements

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

Companies that communicate by fax have until April 30, 2015 to request a retroactive waiver from a Federal Communications Commission rule requiring that opt-out notice be included on all fax ads, including those sent to consumers who have provided prior express invitation or permission.

In 2006, the FCC adopted a new rule which requires opt-out notices in facsimile advertisements sent with the recipients’ prior express permission.  The FCC was then faced with an application for review of a Consumer and Governmental Affairs Bureau order and 24 petitions which collectively challenged the opt-in requirement adopted in 2006.  The petitioners argued that the TCPA applies only to unsolicited advertisements and therefore could not provide a statutory basis for the rule.  The petitioners also argued that the FCC provided conflicting statements with regard to the applicability of the rule to solicited facsimile advertisements.

As we previously discussed, on October 30, 2014, the FCC released an Order confirming that opt-out notices complying with rules and regulations adopted by the FCC are required on all advertisements transmitted by facsimile, including advertisements transmitted with the prior express permission of the recipient.  The FCC, recognizing the uncertainty over whether the opt-out requirements applied to senders with express permission of the recipients, granted retroactive waivers to the parties that had made the requests with respect to faxes sent with consent but without opt-out notices, and allowed those parties until April 30, 2015 to come into compliance with opt-out requirements.  The FCC invited “similarly situated parties” to seek waivers prior to April 30, 2015, but noted that it expected parties making similar waiver requests to “make every effort to file within six months of the release of this Order.”

At least 64 petitions for waivers have been filed, and while the FCC has invited comment on many of these petitions, it has not issued any rulings.

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