DC Circuit Strikes Down FCC’s Solicited Fax Regulation

Date: April 04, 2017

Recently, in Bais Yaakov of Spring Valley v Federal Communications Commission and the United States of America, the U.S. Court of Appeals for the D.C. Circuit issued a fantastic decision striking-down illegally promulgated regulations from the Federal Communications Commission. While finding FCC has statutory authority to prohibit unsolicited commercial faxes, the court sided with the NFIB Small Business Legal Center in ruling that FCC lacked authority to require boiler plate language on faxes where the recipient previously consented to receive a fax from the sender. This comes as a huge victory—especially for one small Mid-Western business that was hit with $54 million dollar lawsuit for failing to include FCC’s boilerplate opt-out language.

Memorably, the decision begins with this quip from Judge Kavanaugh: “Believe it or not the fax machine is not yet extinct.” That is quite true. While the clear majority of businesses use email as the preferred means of electronic communication, many still use fax machines on a routine basis. For that matter, it is not uncommon for businesses to fax their marketing materials—yes, even in 2017.

The court’s decision means these businesses can continue to do so without risking a ruinous lawsuit—that is, so long as they first obtain consent from the intended recipient. But with this decision, it is no longer necessary for commercial faxes to include language about how the recipient may opt-out of future faxes. The appellate court decision makes clear that FCC cannot promulgate any regulation it might like. – Regardless of what policies FCC wants to advance, it can regulate only what Congress has authorized.

For those interested, we explain this issue in greater depth here. And NFIB’s Executive Director, Karen Harned, offers her thoughts on a related lawsuit here.

*This article does not provide legal advice. Businesses are advised to retain counsel from a trusted attorney with experience in employment law.

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