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October 2015 TCPA Compliance Monitoring Report
As we have reported, the Federal Communications Commission (“Commission”) has seen a deluge of petitions for retroactive waiver of the Commission fax advertisement opt-out notice rule in the wake of last year’s Anda Order. More than 100 petitioners filed “me-too” petitions seeking to take advantage of the Commission’s invitation for similarly situated petitioners to receive the same relief the Commission granted to Anda and several other petitioners last October, namely the waiver of the Commission’s fax opt-out notice rule for any solicited fax advertisement sent prior to April 30, 2015.
On August 28, 2015, the Commission’s Consumer and Governmental Affairs Bureau (“Bureau”) granted 110 retroactive waivers of the fax opt-out notice rule. It also denied one petition by Bijora Inc. (“Bijora”) seeking waiver of the Commission opt-out notice rule as applied to text message advertisements. While Bijora claims to be a defendant in a Telephone Consumer Protection Act (“TCPA”) class action lawsuit based on text message advertisements it sent without an opt-out notice, the Bureau noted that Section 64.1200(a)(4)(iv) (the opt-out notice rule) applies to fax advertisements only. Therefore, the Bureau held there is no uncertainty in the opt-out notice rule with respect to text message advertisements that would necessitate a declaratory ruling.
While the retroactive waivers granted by the Commission in the Anda Order and the Bureau’s recent Order may limit liability for companies that received a waiver, businesses that send fax advertisements must now be in full compliance with the Commission’s opt-out notice rule. In the Anda Order, the Commission affirmed its authority to require opt-out notices on solicited fax advertisements and required recipients of a waiver to come into compliance with the opt-out notice rule by April 30, 2015.
Finally, six plaintiffs in fax advertisement opt-out notice class action lawsuits have filed Applications for Review of the Bureau’s decision granting the retroactive waivers. An Application for Review is a type of administrative appeal of a bureau level decision to the full Commission. A party that wants to appeal a bureau level decision in a federal court must first appeal the decision to the full Commission and get a final decision from the Commission.
In this case, the plaintiffs argue, among other things, that the Commission does not have the authority to retroactively waive a statutorily created private cause of action, that the waivers violate separation of powers principles, that the waivers cannot have retroactive effect, and that the record does not support that any of the parties seeking waiver were actually confused as to the application of the opt-out notice rule. We will continue to monitor the progress of these Applications for Review and update our readers regarding any public notice comment period announced by the Commission.
If you have any questions about the application of the opt-out notice rule to your business or have any other questions regarding the TCPA, please contact Linda McReynolds at firstname.lastname@example.org, Jane Wagner at email@example.com, or Robert Jackson, firstname.lastname@example.org.