Fax machineBy 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.

Recently, the United States Court of Appeals for the District of Columbia Circuit consolidated 13 different petitions challenging the 2014 FCC Order into one action. See Brief of Respondent, Yaakov v. Federal Communications Commission, No. 14-1234 (D.C. Cir. Dec. 24, 2015). Petitioners in this case are raising two main challenges to the 2014 FCC Order. First, petitioners argue that the TCPA unambiguously prohibits the FCC from requiring advertisers to include an opt-out notice on fax advertisements sent with prior invitation or permission in order to prevent future unsolicited faxes. Id. at 13. Second, petitioners challenge the FCC’s authority to retroactively waive violations of the opt-out notice requirements. Id. Oral arguments are currently scheduled to take place on Nov. 8, 2016.

Putative class action cases across the country have sought stays based on the outcome of this case, and interested parties will be watching Yaakov closely. See, e.g., St. Louis Heart Center, Inc. v. Athena Health Inc., No. 4:15-CV-01215-AGF (E.D. Mo.) (case stayed because: (1) the plaintiff’s putative class encompassed both solicited and unsolicited advertisements, (2) the defendant had provided sufficient evidence to show that the faxes could have been sent with prior permission, and (3) the outcome of the Yaakov v. FCC case would impact any class certification decision because it was specifically relevant to the determination of commonality); but see Spine and Sports Chiropractic, Inc. v. Insight Health Corp., No. 2:15-cv-3041, 2016 WL 1211330 (S.D. Ohio) (case not stayed because the FCC waiver did not apply to unsolicited faxes and thus was inapplicable to the case involving purely unsolicited faxes).