Leading Small Business Organization dubs FCC regulation on solicited faxes “constitutionally infirm”

Date: November 17, 2015

Contact: Kelly Klass 609-713-4243 or [email protected]
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National Federation
of Independent Business (NFIB) urges federal court to reject small business liability
for sending faxes with the permission of its costumers 

Washington, D.C. (November 17, 2015) – The Federal Communication
Commission’s “Solicited Fax Rule,” requiring small business owners to include
detailed opt-out notices on faxes that consumers have expressly consented to
receive, is a violation of the First Amendment, said NFIB yesterday when the
group asked the DC Circuit Court of Appeals to rule against this FCC regulation

“This is complete regulatory overreach that is unwarranted
and unjustified,” NFIB Small Business
Legal Center Executive Director Karen Harned
said.  “Demanding that small business owners include
specific opt-out language on a fax that their customers have asked to receive
is a direct violation of a business owner’s first amendment right to
communicate with its consumers. Government simply cannot dictate the content of
non-deceptive communications between private parties.”

At issue in the case of Bais
Yaakov of Spring Valley v Federal Communications Commission and the United
States of America
is whether the FCC can require senders of solicited faxes
to include a scripted opt-out notice.  The
courts have maintained that unsolicited advertisements should be regulated to
avoid influxes of “junk mail,” but NFIB is arguing that Congress never intended
to burden protected speech. NFIB holds that this is a violation of a sender’s
First Amendment right to communicate with consenting customers. 

“Small businesses already have to navigate through multifarious and obscure federal regulations without the
help of in-house compliance officers, which make them extremely vulnerable to
lawsuits,” Harned continued.  “One of
NFIB’s members is involved in a $48 million class action lawsuit for violating
this FCC rule even though there is no allegation that he sent a fax to any
recipient without the recipient’s prior consent.”

The NFIB member previously sought to have his
case heard before the Supreme Court in Michael R. Nack v. Douglas Paul Walburg, but the Supreme Court
declined to take the case

“We hope the DC Circuit stops this illegally adopted regulation
that puts small business owners at an additional risk of being sued.”


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