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There’s a filing deadline looming at the FCC, and for some businesses, it represents the last chance to avoid costly litigation and enforcement actions. After April 30th, businesses that sent faxed ads could face forfeiture liability and class action liability for past instances where they failed to comply with FCC faxed ad rules.
Back in October, the FCC clarified that all faxed ads must contain opt-out information as required by the FCC’s rules and the Junk Fax Prevention Act of 2005. The FCC emphasized it does not distinguish between unsolicited or solicited faxes for the purposes of opt-out notices. All ads – even those targeted to a consumer who agreed that the advertiser could send faxed ads – must include the required disclosure.
Under FCC rules, opt-out notices must meet the following standards:
- notices must be clear and conspicuous;
- notices must state on the first page of the ad that the recipient may make a request to the sender not to send any future ads and that failure to comply, within 30 days, with such a request is unlawful; and
- notices must contain a domestic contact telephone number and fax number for the recipient to transmit an opt-out request.
If your business sent a faxed ad to a consumer who agreed to receive such ads but your business failed to provide appropriate opt-out information, you have a brief chance to limit your liability for past mistakes. Businesses that meet these criteria should take the following steps:
- file a Petition for Retroactive Waiver with the FCC by April 30;
- comply with FCC faxed ad opt-out rules by April 30.
Filing a Petition for Retroactive Waiver can impact exposure to TCPA litigation as well. It is quite likely judges will agree that any party to litigation that was also granted a retroactive waiver is excused from liability for any solicited faxed ad sent during the waiver period.
As seen in this month’s TCPA monitor, numerous businesses have already filed Petitions for Retroactive Waiver with the FCC. If you would like assistance filing your own waiver of the FCC’s opt-out rules, please contact Jane Wagner: firstname.lastname@example.org – 703-714-1321; Linda McReynolds: email@example.com – 703-714-1318; or Robert Jackson: firstname.lastname@example.org – 703-714-1316.