By its express terms, the Telephone Consumer Protection Act (TCPA) applies only to unsolicited faxes. 47 U.S.C. § 227(b)(1)(C) & (a)(5). However, in May 2006, the FCC promulgated new rules concerning fax advertisement transmissions that stated that “[a] facsimile advertisement . . . sent to a recipient that has provided prior express invitation or permission to the sender must include an opt-out notice.” In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991 Junk Fax Prevention Act of 2005, 21 F.C.C. Rcd. 3787, 3820–21 (2006). Confusingly, the 2006 FCC rule change also included a footnote stating that “the opt-out notice requirement only applie[d] to communications [constituting] unsolicited advertisements.” Id. at 3818 n.154.
In October 2014, the FCC issued an order (2014 FCC Order) recognizing ensuing confusion and ambiguity caused by the 2006 FCC rule change. In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 29 F.C.C. Rcd. 13998, 13998 (2014). The 2014 FCC Order stated that “some parties who have sent fax ads with the recipient’s prior express permission may have reasonably been uncertain about whether [the] requirement for opt-out notices applied to them.” Id. Due to this reasonable uncertainty, the 2014 FCC Order provided for the issuance of retroactive waivers of compliance with the opt-out requirement when the sender had express prior permission to send a fax advertisement. Id. The waivers were provided retroactively to those who failed to comply with these requirements up to six months prior to Oct. 30, 2014. Id. at 14012. Applications for waivers were accepted until April 2015. Id. Continue Reading