By Laura H. Phillips and Laura K. Layton
On August 28, 2015, the Consumer and Governmental Affairs Bureau (“Bureau”), on authority delegated from the Federal Communications Commission, released an Order (“August 28 Order”) granting 117 petitions seeking a retroactive waiver of the opt-out notice requirement for solicited faxes (47 C.F.R § 64.1200(a)(4)(iv)). The August 28 Order was the first time since the October 30, 2014 Fax Order (reported on here, wherein the FCC retroactively waived the applicability of Section 64.1200(a)(4)(iv) as to 24 petitioners, and invited similarly-situated parties to file petitions of their own requesting the same relief) that the Bureau addressed the applicability of Section 64.1200(a)(4)(iv). The petitions granted on August 28 were filed between September 30, 2014, and June 16, 2015.
In the August 28 Order, the Bureau opened by summarizing the history of fax regulations under the TCPA and recounting the lead-up to the October 30, 2014 Fax Order, namely, “that a footnote contained in the Junk Fax Order caused confusion regarding the applicability of the opt-out notice requirement to faxes sent to recipients who provided prior express permission.” August 28 Order ¶ 7. In the October 30, 2014 Fax Order, the Commission had explained that “[t]he use of the word ‘unsolicited’ in this one instance may have caused some parties to misconstrue the Commission’s intent to apply the opt-out notice to fax ads sent with the prior express permission of the recipient.” October 30, 2014 Order ¶ 24. The FCC had also acknowledged a second source of confusion in terms of a “lack of explicit notice” of the FCC’s intent to impose an opt-out requirement on solicited fax advertisements. Id. ¶ 25. “As a result, the Commission found that good cause existed to grant limited retroactive waivers to those petitioners who sent fax ads to recipients who had provided prior express consent to receive them.” August 28 Order ¶ 7.
In granting this meaningful relief to 117 “similarly-situated” parties, the Bureau noted that “good cause exists to grant individual retroactive waivers of section 64.1200(a)(4)(iv) of the Commission’s rules,” and such waivers “provide relief through April 30, 2015.” August 28 Order ¶ 11. The Bureau found that “the public interest is better served,” by granting these petitions and rejected arguments that by granting waivers while litigation is pending the Commission violates the separation of powers. August 28 Order ¶ 13. The Bureau held that “special circumstances” made the petitioners “deserving” of these limited waivers given that they all “reference[d] the contradictory language in the Commission’s fax opt-out decision,” and further stated that “no record evidence rebuts the . . . presumption of confusion or misplaced confidence.” August 28 Order ¶ 14-16. The Bureau made clear that that the granting of a waiver is not a determination as to whether any particular faxes were, in fact, solicited: “That remains a question for triers of fact in the private litigation.” August 28 Order ¶ 17. Significantly, the Bureau also granted petitions of parties that filed after April 30, 2015 – a date that was referenced in its October 30, 2014 Fax Order. August 28 Order ¶ 20. Notably, the Bureau rejected myriad arguments that certain commenters – predominantly plaintiffs in pending TCPA class action lawsuits – made in opposing this relief.