On March 31, 2017, the D.C. Circuit entered its ruling in the closely watched Yaakov v. FCC case, holding that the Federal Communications Commission (FCC) had exceeded the authority given to it by Congress when it promulgated a rule requiring that opt-out notices be included in fax advertisements sent with prior permission of the recipient. See https://www.classactionlawsuitdefense.com/2017/04/03/d-c-circuit-may-have-finally-killed-tcpa-class-actions-over-solicited-faxes-without-opt-out-notices/. Many have speculated that the D.C. Circuit’s ruling will be the final word on this issue, especially given a statement issued by the chairman of the FCC, Ajit Pai, on the same day as the Yaakov opinion, indicating that the decision “highlight[ed] the importance of the FCC adhering to the rule of law” and stating that “[g]oing forward, the Commission will strive to follow the law and exercise on the authority that [it] has been granted . . . by Congress.” However, a handful of intervenors and petitioners have continued to challenge the ruling.
On June 6, the D.C. Circuit issued a one-sentence per curiam order striking down several intervenors’ petition for rehearing en banc. See https://www.classactionlawsuitdefense.com/2017/06/13/dc-circuit-denies-intervenors-petition-for-rehearing-en-banc-after-striking-down-fcc-regulations-requiring-opt-out-notifications-on-solicited-fax-advertisements/. Then, on June 12, a handful of petitioners and intervenors (“movants”) filed a motion to stay the issuance of the D.C. Circuit’s mandate pending a decision on a writ of certiorari that they intend to file with the United States Supreme Court. In their motion, the movants stated that “‘[g]ood cause’ exists to stay the mandate” because they “intend to file a timely petition for writ of certiorari to the Supreme Court” that will “present ‘substantial questions’ regarding the scope of a federal agency’s power to issue regulations under a ‘general conferral of rulemaking authority’ . . . and  the limitations on an agency’s ability to ‘waive’ a statutory cause of action for violation of its implementing regulations . . . .” Id. at 3. The FCC and the nonmoving petitioners and intervenors opposed the motion to stay the mandate, arguing that the moving parties could not show (1) that a substantial question of law would be presented in a writ of certiorari or (2) that they would suffer irreparable harm from application of the D.C. Circuit’s ruling in the Yaakov case. On June 28, the D.C. Circuit denied the motion to stay the mandate and on July 10, 2017, the mandate was issued.
While denial of the motion to stay the mandate is a win for several petitioner businesses who took part in the suit, it appears that a petition for certiorari will be forthcoming. But such a petition faces an uphill battle given the FCC’s reluctance to challenge the D.C. Circuit’s ruling. Nonetheless, we will continue to watch Yaakov closely to see whether any petition for writ of certiorari is ultimately filed or granted.