FCC Confirms That Fax Ads Sent With Express Permission Require Opt-Out Notice

On October 30, 2014, the Federal Communications Commission (FCC) issued an order reaffirming  that ads faxed with the express permission of the recipient must include a notice with instructions about how to opt out of future faxes. The order rejects petitions by a number of businesses claiming that  the Telephone Consumer Protection Act  (TCPA) opt-out requirement applied only to “unsolicited” fax advertisements, so that the requirement did not apply to  faxes “solicited” by those who consent to receive the faxed ads.

The FCC also  granted retroactive waivers  from any the obligation to have opt-out notices on faxes sent with the express consent of the recipient.   The waivers give petitioners who received them a six-month window to come into compliance with the opt-out requirement.  The FCC also invited other parties to seek waivers, strongly suggesting that such requests must be on file within the next six months.

Since 1992, the TCPA has prohibited using any fax machine, computer, or other device to send “unsolicited advertisements.” The FCC was authorized to  adopt implementing rules. The FCC rules included an exemption for unsolicited fax ads sent pursuant to an established business relationship (EBR).

In 2005, the Junk Fax Protection Act codified the FCC’s EBR exemption and required their senders to provide notice and contact information on the fax to allow recipients to “opt out” of future faxes, and specified how opt-out requests must comply with the Act in order to be honored.

In implementing the 2005 Act, the FCC adopted a rule requiring fax ads sent to recipients who provided prior permission to the sender to also include opt-out notices.

A number of businesses that failed to comply with the rule relating to faxes sent with prior permission claimed  that the FCC lacked statutory authority to adopt a rule requiring an opt-out notice on fax ads sent with the recipient’s express prior consent.  Their petitions contended that the TCPA only authorizes the FCC to adopt restrictions  for unsolicited fax ads, defined to exclude any fax ad sent with the recipient’s prior invitation or permission.

The October 30, 2014 order rejects those arguments. The FCC stated that the TCPA grants it authority to prescribe regulations to implement the fax ad provisions, and in doing so defines unsolicited fax ads as those “transmitted … without … prior express invitation or permission.” Noting that the phrase “prior express invitation or permission” was not defined, the FCC claimed the statute required it to construe the term in order to adopt implementing rules. In doing so, it held that “express permission need only be secured once from the consumer in order to send fax ad[s] to that recipient until the consumer revokes such permission by sending an opt-out request.” As a result, the FCC states, prior permission remains in place only if not revoked, which made it necessary for rules to establish a means of revocation. Having the same out-out notice requirement as applies to “unsolicited” fax ads therefore made sense.

At the same time, the FCC claimed that  good cause exists to grant a “limited retroactive waiver” to the petitioners, citing two grounds that “led to confusion among affected parties (or misplaced confidence that the opt-out notice rule did not apply to fax ads sent with prior express permission of the recipient).”  The  waiver reaches back to adoption of the Junk Fax Protection Act rules and its opt-out requirement for permission-based fax ads, and extends six months after adoption of the current Order. After that time, all senders of fax ads – including those based on prior permission from the recipient – must be in compliance with the opt-out notice requirement.



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