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February 2016 TCPA Compliance Monitoring Report
A few petitions requesting retroactive waiver of the Federal Communications Commission’s (“FCC” or “Commission”) fax advertisement opt-out notice rules under section 64.1200(a)(4)(iv) continue to trickle in to the Consumer and Governmental Affairs Bureau (“CGB”), and on January 29, CGB released a public notice seeking comment on three more of these petitions. The comment deadline is February 12, 2016, and the reply comment deadline is February 19, 2016.
Despite the Commission’s admonition that petitioners seeking a retroactive waiver of the FCC’s opt-out notice “make ever effort” to file their requests by April 30, 2015, petitioners continue to submit waiver requests, and CGB granted retroactive waivers to petitioners that filed after April 30 in its orders addressing opt-out notice waivers on August 28, 2015 and December 9, 2015. As a result, parties, primarily defendants in pending fax advertisement opt-out notice litigation, keep asking for retroactive waivers nine months after the Commission’s aspirational deadline.
But not all affected parties believe the April 30 deadline was aspirational. Plaintiffs involved in ongoing cases with several of the companies granted retroactive waivers argue that the Commission should not grant waiver requests filed after April 30. In Petitions for Reconsideration and Applications for Review filed in response to both the August 28 Order and the December 9 Order, plaintiffs argue the Commission should deny petitions filed after April 30 even if a petitioner filed after April 30 because it was not involved in litigation regarding opt-out notice requirements prior to April 30. These appeals of CGB’s orders granting retroactive waivers remain pending both before CGB and before the full Commission. By rule, the Petitions for Reconsideration currently before CGB will be decided before the Application for Review by the full Commission.
If your company would like to file comments in response to CGB’s public notice or would like any help filing a petition for retroactive waiver of the Commission fax advertisement opt-out notice rules, please contact Jane Wagner at jlw@commlawgroup.com, Seth Williams at slw@commlawgroup.com, or Nate Hardy at njh@commlawgroup.com.
