FCC Scraps Opt-Out Rule for Some Faxes; Groups Say Smartphones Not Inherently 'ATDS'
FCC staff eliminated a rule requiring opt-out notices for faxes sent with a recipient’s prior consent. The Consumer and Governmental Affairs Bureau order Wednesday in docket 02-278 responded to a U.S. Court of Appeals for the D.C. Circuit decision that…
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the rule “is unlawful to the extent that it requires opt out notices on solicited faxes." The 2017 Bais Yaakov majority opinion was by now-Justice Brett Kavanaugh (see 1703310018). The bureau also dismissed as moot 10 pending petitions for retroactive waiver of the rule and two petitions to reconsider orders enforcing the rule under 2005 Junk Fax Prevention Act amendments to the 1991 Telephone Consumer Protection Act. Meanwhile, consumer advocates said, "Americans overwhelmingly hate receiving unwanted robocalls," but the advocates agree with the D.C. Circuit's ACA International March ruling (see 1803160053) that the definition of legally restricted "automatic telephone dialing systems" shouldn't encompass ordinary smartphone use. Having consulted further with technology experts, "we now understand that smartphones as manufactured and delivered to consumers do not have the present capacity to dial multiple numbers simultaneously or send mass texts," filed the National Consumer Law Center and other groups. "They do not come from the manufacturer already configured to be an ATDS." The American Cable Association lobbied an aide to FCC Chairman Ajit Pai, Chief Technology Officer Eric Burger and other staffers on ACA's proposal to affirm voice service providers' ability to offer robocall blocking tools to customers "on an informed opt-out basis."