On Friday, March 31, the D.C Circuit Court entered its ruling on Yaakov v. Federal Communications Commission vacating the part of the FCC's 2006 Fax Order that requires the inclusion of opt-out language on faxes that are sent with the prior consent of the recipient. In a 2-1 decision, the majority held that the FCC lacked authority under the Telephone Consumer Protection Act (TCPA) to regulate solicited faxes.
The Court’s Judgement
The court released its opinion that the current language of the TCPA makes it unlawful to send unsolicited fax advertisements to consumers, but that the FCC does not have the authority to impose regulations on solicited fax advertisements. For now, if a consumer provides a business with “prior expressed consent” to receive advertisements, but does not provide opt-out information on the fax advertisement, there is no TCPA violation.
Marketers can breathe a sigh of relief. Friday’s ruling ends the FCC’s requirement that an opt-out notices be included on all fax advertisements. As a business owner, this eliminates exposure to one area of liability placed upon them under the TCPA.
What This Judgement Means for Your Business
Despite this victory, opt-out notices are still required on unsolicited fax advertisements, even if there is a pre-existing businesses relationship. Going forward, businesses should continue to review their existing compliance procedures and updated them as needed. Marketers must be diligent in their handling of request from consumers who withdraw consent. Having documentation of your compliance procedures provides you with the means to defend your business against potential consumer allegations.
The court’s decision should make it harder for serial plaintiffs and other consumers to file TCPA lawsuits against companies that choose to engage in fax marketing. The question of whether or not a fax was solicited will be a critical factor in deciding if a lawsuit should be brought and whether a class should be certified.
What’s Next From the Courts?
It’s worth noting that Judge Nina Pillard was the lone dissenter in this case. In her dissent, she focused on consumer harm and what she called “a fusillade of annoying and unstoppable advertisements.” As luck would have it, she is also one of the judges on another important TCPA related case, ACA International, et al. v. FCC. That case deals with the definition and interpretation of autodialer technology. A decision should be announced on that case any day now.
Remember that even though opt-out language is no longer required on fax advertisements, marketers are still required to have a consumer’s “prior expressed consent” under the TCPA. Now we can only hope that the forthcoming decision from ACA International, et al. v. FCC, will continue the roll back of regulations and provide a more business-friendly environment for the direct marketing industry.