TCPA Plaintiffs Appeal FCC Bureau Elimination of Opt-Out Rule for Some Faxes
A group of Telephone Consumer Protection Act plaintiffs asked the FCC to overturn a Nov. 14 Consumer and Governmental Affairs Bureau order scrapping a rule requiring opt-out notices for faxes sent with a recipient's prior consent, and citing a U.S.…
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Court of Appeals for the D.C. Circuit ruling (see 1811140054). Because the bureau order "is based on the erroneous notion that the Commission has no choice in this matter, it should be vacated," said an application for review of Gorss Motels, Compressor Engineering, Swetlic Chiropractic & Rehabilitation Center, Shaun Fauley and JT’s Frames, posted Monday in docket 05-338. The bureau rejected "as 'moot' 10 petitions and two petitions for reconsideration seeking 'retroactive waivers' of 47 C.F.R. § 64.1200(a)(4)(iv) -- the regulation requiring 'opt-out notice' on fax advertisements sent with 'prior express invitation or permission' -- on the basis that the D.C. Circuit’s decision in Bais Yaakov of Spring Valley v. FCC [2017] ... 'vacated the 2006 Solicited Fax Rule' and was a 'non-discretionary mandate' to the Commission to 'eliminate' that regulation," wrote the applicants, who are plaintiffs in pending TCPA suits against waiver petitioners and filed comments opposing the petitions. They said the D.C. Circuit's split decision "did not 'mandate' that the Commission do anything in particular, and the Commission is not required to 'acquiesce' to the 'expressio unius' rationale upon which the majority’s opinion is based, and is free to adopt the reasoning of Judge [Cornelia] Pillard’s dissent, concluding that the Commission had statutory authority to issue Rule 64.1200(a)(4)(iv) in the 2006 Order."