TCPA Connect

Revocation? Think Again.

By Christine M. Reilly, Chair, TCPA Compliance and Class Action Defense | Diana L. Eisner, Associate, Litigation

On Thursday, the U.S. Court of Appeals, Second Circuit issued what might be the most business-friendly Telephone Consumer Protection Act (TCPA) decision we have seen in a long time in Reyes v. Lincoln Automotive Financial Services.

The facts of Reyes tell an old, familiar story. Reyes leased a new luxury Lincoln in 2012 and provided his cell phone number in his lease application. The application included a provision that Reyes “expressly consent[ed]” to contact via “prerecorded or artificial voice messages, text messages, . . . and/or automatic telephone dialing systems.” Not long after he signed the lease, Reyes stopped making payments. Lincoln called Reyes many times to cure his default. Reyes claimed he mailed Lincoln a letter demanding that all calls to his cell phone cease, but the calls continued. In 2015, Reyes filed a TCPA lawsuit against Lincoln, seeking $720,000 in damages for the allegedly unlawful phone calls. The district court granted summary judgment in Lincoln’s favor, finding that Reyes failed to prove he revoked consent, and that regardless, the TCPA does not permit a party to a legally binding contract to unilaterally revoke bargained-for consent to be contacted.

Reyes appealed. The Second Circuit disagreed that Reyes failed to prove he revoked consent, but agreed that the TCPA does not permit a consumer to revoke his or her consent to be called “when that consent forms part of a bargained-for exchange.” The court distinguished prior authority by the Federal Communications Commission (FCC) and the Third and Eleventh Circuits, which held that consent under the TCPA can be freely revoked, by narrowing the issue to “whether the TCPA [] permits a consumer to unilaterally revoke his or her consent to be contacted by telephone when that consent is given, not gratuitously, but as bargained-for consideration in a bilateral contract” (emphasis added).

The Second Circuit reasoned that its sister circuits and the FCC “considered a narrow question: whether the TCPA allows a consumer who has freely and unilaterally given his or her informed consent to be contacted can later revoke consent.” In both the Third and Eleventh Circuit cases, the consent to be contacted was “not given in exchange for any consideration,” and was not incorporated into a binding legal agreement. The FCC’s 2015 Ruling relied on those two cases in holding that consent can be revoked at any time in any reasonable manner. By contrast, Reyes’ consent to be contacted was an express provision of his bilateral lease contract. Thus, his consent was not revocable. The Second Circuit found that ruling otherwise would impermissibly “alter the common law of contracts” without evidence Congress intended to do so.

Importantly, the court’s decision is grounded on the difference between “consent” in tort law and contract law. In tort, consent is generally a “gratuitous action,” and its effectiveness is extinguished upon termination. However, in contract, consent to another’s action can become irrevocable when provided in a legally binding agreement.

The decision will likely be appealed. The highly anticipated D.C. Circuit appeal of the FCC’s July 2015 Declaratory Ruling is expected as early as this summer. That appeal is also expected to address the FCC’s broad ruling on revocation of consent.

For now, businesses should consider reviewing their contracts and including a strong “consent to contact” provision. Not only could these provisions allow companies to continue collection efforts in the event of a default, even in the face of a purported revocation, but they also serve more fundamental purposes of ensuring consent is properly obtained in the first instance and in managing consumer expectation.

The TCPA Compliance and Class Action Defense team at Manatt will continue to monitor how this issue develops.

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Record $280M Fine for Dish Network’s Telemarketing Violations

By Christine M. Reilly, Chair, TCPA Compliance and Class Action Defense | Diana L. Eisner, Associate, Litigation

In a suit with massive implications for companies employing independent contractors to make marketing calls, brought by state attorneys general, the Federal Trade Commission and the Department of Justice against Dish Network, an Illinois federal court judge ordered a record total of $280 million in penalties for violations of the Telephone Consumer Protection Act (TCPA), the Telemarketing Sales Rule and state law.

The government entities claimed Dish initiated—or caused a telemarketer to initiate—outbound calls to phone numbers on the National Do Not Call Registry, violated the TSR’s prohibition on abandoned calls, and assisted and facilitated telemarketers when it knew (or consciously avoided knowing) that the telemarketer was engaged in violations of the law. Dish markets its satellite television programming through telemarketing vendors it contracts with as well as authorized dealers or retailers. So while Dish made some of these calls itself, many were made by Dish’s third-party retailers without Dish’s awareness. Despite Dish’s lack of knowledge and participation, the court found Dish liable for all the calls based on agency. Even though Dish asserted that the third parties intentionally hid their telemarketing efforts, consumers could still be led to believe the third parties were acting on Dish’s directions. The dispositive distinction for the court seemed to be that Dish could exercise control over those third parties if it desired, even though Dish did not actually exercise that control.

“Dish created a situation in which unscrupulous sales persons used illegal practices to sell Dish Network programming any way they could,” U.S. District Court Judge Sue E. Myerscough wrote in a 475-page decision. “The plaintiffs have established that Dish, its telemarketing vendors, and its order entry retailers violated the applicable do-not-call laws millions and millions of times.” According to the court, the company cared about “one factor, the ability to generate activations,” and “cared about very little else,” resulting in more than 66 million violations of the Do Not Call, entity-specific and abandoned call provision of the TSR, not to mention violations of the TCPA and multiple state laws.

The total penalties include a $168 million civil penalty owed to the federal government, with the remaining $112 million to be divided between California, Illinois, North Carolina and Ohio.

Writing that “Dish’s plea of poverty borders on the preposterous,” Judge Myerscough said the penalty was reasonable in light of the company’s actions. “[T]he injury to consumers, the disregard for the law, and the steadfast refusal to accept responsibility require a significant and substantial monetary award,” the court said. “Dish’s denial of responsibility and lack of regard for consumers are deeply disturbing and support the inference that it is reasonably likely that Dish will allow future illegal calls absent government pressure.”

To that end, the order also features injunctive relief, prohibiting Dish, whether acting directly or indirectly through its telemarketers or retailers, from future violations of the TSR. The company must be able to demonstrate that it and its primary retailers—defined as those with more than 600 activations or who use an automated telephone dialing system—are fully compliant with the TSR. If Dish or the retailers are unable to satisfy this requirement, then the company will be barred from conducting any outbound telemarketing calls for a two-year period and/or accepting any orders from its primary retailers.

In addition, the order mandates that Dish hire a telemarketing compliance expert to prepare a plan to ensure that the company and its primary retailers continue to comply with telemarketing laws generally, as well as with the specifics imposed by the injunction. The order also permits the plaintiffs to make ex parte applications for court approval of unannounced inspections of any Dish (or primary retailer) facility or records. All outbound telemarketing call records must be retained and transmitted to the government on a semiannual basis along with other documentation of telemarketing compliance.

To read the order in United States v. Dish Network, click here.

Why it matters: This decision illustrates the potentially massive impact that third-party affiliates and employees can have on a company. Ginormous penalties aside, this case is an important reminder that vicarious liability is alive and well under the TCPA. And even if you have not authorized, or even know about, specific actions, you could still face liability if the conduct is within the scope of an employee or agent’s authority. Moreover, the compliance requirements in the order show that federal and state agencies, as well as the courts, care not only about money, but also about ensuring future compliance. The compliance requirements imposed are also steps every company should take before engaging in telephonic marketing.

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Dish Network Also Hit With $61.5M Verdict

By Christine M. Reilly, Chair, TCPA Compliance and Class Action Defense | Diana L. Eisner, Associate, Litigation

As if Dish Network’s year couldn’t get much worse, the order in the government’s case against Dish followed on the heels of a class action based on similar claims in North Carolina federal court. There, Thomas Krakauer filed suit against Dish, alleging that he received dozens of calls from Satellite Systems Network on behalf of Dish, despite the fact his number was registered on the National Do Not Call Registry and even after he complained to Dish about the calls and the company said it had placed him on its internal do-not-call list.

A jury sided with Krakauer in January, finding that SSN acted as Dish’s agent when it made the calls at issue and violated the Telephone Consumer Protection Act (TCPA), awarding $400 for each of the 51,119 calls at issue for a total of approximately $20.47 million. After the verdict, the parties submitted arguments on willfulness. U.S. District Court Judge Catherine C. Eagles had little trouble holding that Dish willfully violated the statute and trebled the damage award.

“On paper, Dish was committed to monitoring its marketers’ compliance with telemarketing laws and investigating complaints of violations,” the court said. “In reality, however, Dish repeatedly looked the other way when SSN violated the telemarketing laws and when SSN disregarded contractual duties related to compliance.”

Dish confirmed in a 2009 settlement with 46 state attorneys general that its contracts with telemarketers, including SSN, gave it virtually unlimited rights to monitor and control the third parties’ activities, the court noted. But despite numerous complaints about SSN—and knowledge of at least three lawsuits against SSN over its telemarketing calls that resulted in monetary damages and injunctive relief—Dish turned a blind eye, Judge Eagles said.

The court found willful and knowing violations based not only on the actions of SSN imputed to Dish, but also on the company’s own conduct. Dish “knew SSN was not scrubbing all its lists or keeping call records. It ignored SSN’s misconduct and, despite promises to forty-six state attorneys general, it made no effort to monitor SSN’s compliance with telemarketing laws. Dish had the power to control SSN’s telemarketing; it simply did not care whether SSN complied with the law or not,” the court wrote.

Treble damages were therefore appropriate “because of the need to deter Dish from future violations and the need to give appropriate weight to the scope of the violations,” the court said, taking issue with the company’s description of the harm to consumers as “a minor nuisance” and an “inconvenience.”

“Dish’s description has left out ‘illegal,’ not to mention ‘infuriating,’” the court said. “Dish’s argument shows a failure to recognize the purpose of the law and is demeaning to consumers who put their names on the Do Not Call Registry and who are entitled by law to have their privacy respected. It also reflects a lack of appreciation for the seriousness of the violations found by the jury: over 50,000 connected calls to over 18,000 private individuals.”

Judge Eagles trebled the jury’s damage award to $1,200 per call, bringing the total to roughly $61.3 million.

To read the memorandum opinion and order in Krakauer v. Dish Network LLC, click here.

Why it matters: TCPA class actions rarely make it to a jury trial, and this case is an apt illustration why. When put into the hands of a jury, uncertainty ensues and damages can be huge. Moreover, for those cases that do make it to trial, treble damage awards are not the norm. To be sure, the past couple of months have been tough for Dish Network—being hit with this trebled damage award as well as the record $280 million penalty owed to various government entities discussed above. But perhaps the best lesson that can be learned from all this is that good compliance remains key, as it is the best way to avoid lawsuits and potentially ruinous damages.

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Seventh Circuit: Retailer Demonstrated Consent for Text Club

By Christine M. Reilly, Chair, TCPA Compliance and Class Action Defense | Diana L. Eisner, Associate, Litigation

Affirming a district court, the U.S. Court of Appeals for the Seventh Circuit tossed a Telephone Consumer Protection Act (TCPA) suit against a retailer over a text message marketing campaign.

Chicago-based women’s clothing and accessory chain Akira launched a “text club” in 2009 to connect with its customers and inform them of promotions, discounts and in-store special events. Akira gathered the cellphone numbers of about 20,000 customers who either provided their number to a representative inside a store, texted it to an opt-in number or completed an “Opt In Card.”

Akira worked with software provided by Opt It, which loaded all the numbers into its platform. An Akira employee would then log in and draft a message to be sent to the text club members, with additional options about which members to send it to and when. From September 2009 through May 2011, the retailer sent approximately 60 text messages about store promotions, events, contests and sales to the customers on the list, including Nicole Blow.

Blow (who became the class representative after there were problems with the first two named plaintiffs) alleged that Akira violated the TCPA’s prohibition against using an automated telephone dialing system to make calls without the express consent of the recipients (the messages were sent before the Federal Communications Commission’s [FCC’s] “prior express written consent” requirement for marketing messages was enacted). The complaint requested $1.8 billion in statutory damages (trebled for willful and knowing violations).

On cross motions for summary judgment, an Illinois district court granted the defendant’s motion, holding that Akira did not use an ATDS. Blow appealed. Although the Seventh Circuit affirmed summary judgment in favor of the retailer, it did so on alternative grounds.

Opt It’s CEO provided an affidavit for Akira that explained the process of sending a text message, emphasizing that a human must take action to send a message through the platform. While the district court was correct that this affidavit established that the platform lacked the present capacity to use a random or sequential number generator for storing or producing numbers, “it falls short of entitling Akira to summary judgment on this issue given the [FCC’s] conclusion that equipment need not possess the ‘current capacity’ or ‘present ability’ to use a random or sequential number generator,” the Seventh Circuit wrote, citing the FCC’s 2015 Declaratory Ruling and Order for support.

Because the parties disputed whether Opt It’s software is in fact capable of dialing numbers without human intervention—and given the expansive definition of an autodialer adopted by the FCC—summary judgment for Akira on this issue was premature, the federal appellate panel concluded.

However, the court did not end its analysis there, instead turning to an argument not reached by the district court that Akira was entitled to summary judgment because Blow consented to the text messages.

The record demonstrated that Blow gave her cellphone number to Akira on several different occasions, the Seventh Circuit said, signing up in either 2009 or 2010 for a frequent buyer card that granted the retailer permission to provide her with “exclusive information and special offers.” The defendant also produced notes that Blow requested a sales associate call her about a particular item, and the plaintiff admitted that she texted “AKIRA” to opt in to the text program.

Blow argued that she never consented to receive the texts, because she provided her phone number only “to receive discounts” and not to get “mass marketing text messages.” But the court rejected this attempt at line drawing.

“We are unpersuaded that there is a distinction of legal significance between the two terms of Blow’s consent: the alleged ‘mass marketing’ texts were in fact the very ‘exclusive information and special offers’ described on Blow’s Akira VIP and client cards,” the panel wrote. “Blow’s attempt to parse her consent to accept some promotional information from Akira while rejecting ‘mass marketing’ texts construes ‘consent’ too narrowly.”

For support, the Seventh Circuit cited a recent decision from the U.S. Court of Appeals for the Ninth Circuit in Van Patten v. Vertical Fitness Group, LLC, where the federal appellate panel ruled the plaintiff granted consent to be contacted on his cellphone number when he provided it in connection with his application for gym membership. Even though he was contacted years later by a company with a different name after he had canceled his gym membership, the court said the texts related to the reason the plaintiff had supplied his number in the first place: to apply for a gym membership.

Blow not only provided her consent to receive text messages, she did so specifically to receive discounts, the Seventh Circuit said.

“Both cards in the record containing Blow’s name and cell phone number clearly state that her information would be used to provide exclusive information and special offers,” the court wrote. “Of the sixty texts Blow received, one welcomed her to the text club, forty-one contained a promotional or discount offer, and the remaining eighteen announced special events such as fashion shows, events that fit comfortably within the aforementioned ‘exclusive information’ described on the cards. Because the texts she received were reasonably related to the purpose for which she provided her cell phone number, we agree that Blow provided prior express consent for the text messages.”

To read the decision in Blow v. Bijora, Inc., click here.

Why it matters: Highlighting that the scope of consent provided by a consumer continues to be an important issue, the Seventh Circuit joined the Ninth Circuit to hold that while a consumer does not consent to any and all contact by providing her cellphone number, she has consented to contact related to the reason the number was provided.

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App User Sent ‘Invite Friends’ Texts, California Court Rules

By Christine M. Reilly, Chair, TCPA Compliance and Class Action Defense | Diana L. Eisner, Associate, Litigation

Text messages initiated by a user inviting friends to use a fashion-themed mobile app were not actionable against the operator of the app, a California federal court judge has determined.

Christopher Reichman alleged that Poshmark, a mobile app that allows users to browse, buy and sell clothing and accessories, sent him two text messages in 2015 inviting him to view and buy certain items. But the defendant countered that the texts were initiated and sent by Tricia Tolentino, a registered user of Poshmark and friend of Reichman.

Tolentino listed several clothing items for sale and then navigated to the “Find People” page, where she opted to have Poshmark send invitations to the contact list stored on her mobile device. Listed among Tolentino’s contacts, Reichman received a text message containing an invitation “to view and buy the wares now being sold through Poshmark” along with a link to Tolentino’s “closet.” One week later, Tolentino repeated these steps and Reichman received a second message from the app.

He then sued Poshmark, alleging the app violated the Telephone Consumer Protection Act (TCPA). The defendant responded with a motion for summary judgment, arguing that it did not “make” the invitational text messages.

In determining whether an app or its user is the maker of a call, U.S. District Court Judge Dana M. Sabraw looked to the Federal Communications Commission’s 2015 Declaratory Ruling and Order, where the agency considered different scenarios presented in the petitions of various messaging apps.

One of those app providers, TextMe, required several affirmative steps on the part of a user in order to send invitational text messages, leading the FCC to conclude that the user, not TextMe, was the maker of the text message.

Analogizing to the TextMe petition, the court explained that before a text message was sent by the app, Tolentino granted the app permission to access her contact list, tapped the “Find People” button, chose the “Find friends from your contacts” option, determined to invite all her contacts (as opposed to selecting specific contacts) and chose to send the invitational message by selecting the “Invite All” button.

“Based on these affirmative steps, it is apparent that Ms. Tolentino, not Defendant, took the action necessary to send the text messages,” Judge Sabraw wrote. “Had Ms. Tolentino decided not to take any of these steps, a text message would not have been sent to Plaintiff.”

Reichman tried to rebut this conclusion by telling the court that genuine issues of material fact remained, such as whether Poshmark adequately informed its users of the method in which invitational messages would be sent. But the defendant offered evidence demonstrating that the app indicates to users whether invitees will receive the invitational message by text or email, the court said, displaying a phone number or email address under each individual’s name depending on the method of contact saved in the user’s device.

“As a result, it is apparent to users that if they decide to invite a contact whose telephone number appears, then an invitation will be sent by text message rather than by e-mail,” the court wrote. “In any event, whether Defendant informed its users regarding the method of invitation (text or email) is not material to determining who ‘makes’ a call under the TCPA.”

The court granted Poshmark’s motion for summary judgment.

To read the order in Reichman v. Poshmark, click here.

Why it matters: “Invite friends” messages, like that here, are a popular feature of many apps and mobile programs. However, given the current TCPA boom, companies have been increasingly worried about these features. The FCC’s 2015 order provided valuable guidance to app operators on how to avoid liability for invitational messages, explaining that the agency looks to “the totality of the facts and circumstances surrounding the placing of a particular call to determine: 1) who took the steps necessary to physically place the call; and 2) whether another person or entity was so involved in placing the call as to be deemed to have initiated it, considering the goals and purposes of the TCPA.” Poshmark followed the example of TextMe, where the affirmative choices by users led to the conclusion that the app itself did not make the invitational text messages and therefore could not be liable under the TCPA. This decision helps reinforce that companies can utilize “invite friends” features without the fear of TCPA liability.

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Does TCPA Apply to Ringless Voicemails? Petition Says No

By Christine M. Reilly, Chair, TCPA Compliance and Class Action Defense | Diana L. Eisner, Associate, Litigation

A petition filed with the Federal Communications Commission (FCC) requested that the agency declare that the delivery of a voice message directly to a voicemail box does not implicate the Telephone Consumer Protection Act (TCPA). But in an interesting turn of events, the petition was withdrawn as this article was going to press.

All About the Message (AATM), a distributor of direct-to-voicemail insertion technology, signs up customers to use the software and platform for delivery of voicemail messages directly to consumers’ voicemail services. The technology creates a direct communication between the servers and the voicemail system of the carrier telephone company, the company explained, allowing the delivery of the voicemail without placing a direct call to the subscriber.

Concerned about the “cottage industry” of TCPA class actions, the company filed a petition with the FCC that ringless voicemail messages do not violate the statute.

“The TCPA does not impose liability for voicemail messages, delivered directly to a voicemail service provider, that never pass through a person’s cellular telephone line, and never result in a charge to the subscriber for the delivery of the message,” the petitioner argued. “Such conduct falls outside the plain statutory language and the Commission’s Regulations. What’s more, the Commission lacks the authority to regulate voicemail service.”

Title II of the Communications Act—which includes the TCPA—expressly does not regulate voicemail, AATM told the FCC. Voicemail is an enhanced service and not a telecommunications service, meaning the FCC’s regulations do not operate to limit, curtail or control voicemail service. That means the TCPA does not apply to direct-to-voicemail insertion technology, the petitioner argued.

The TCPA proscribes the use of certain equipment “to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using an automated telephone dialing system or an artificial or prerecorded voice … to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call,” pursuant to Section 227(b)(1)(A)(iii).

The voicemail deposit system does not involve making a call to a cellular telephone number and consumers are not charged for the delivery of the voicemail communications, the company pointed out.

“The statutory structure and the Commission’s implementing regulations are clear: TCPA liability exists only when an autodialed or prerecorded call is made to the mobile telephone number of a consumer or a telephone number of another wireless service for which the consumer is charged,” AATM wrote. “Voicemail service, and the process by which voicemail is deposited on a carrier’s platform for subsequent access by a subscriber, is neither a call made to a mobile telephone number nor a call for which a consumer is charged, and, indeed, is a service that is not regulated at all.”

Congress never intended to regulate direct-to-voicemail technology, AATM said, particularly as voicemail messages do not implicate the same concerns as autodialed telephone calls. “The act of depositing a voicemail on a voicemail service without dialing a consumer’s cellular telephone line does not result in the kind of disruptions to a consumer’s life – dead air calls, calls interrupting consumers at inconvenient times, or delivery charges to consumers – which the TCPA was designed to prevent,” the petitioner wrote. “Consumers have the freedom to dial into their carriers’ voicemail service platform to pick up the voicemail or not, to listen to it or not, as and when they see fit, and may do so without incurring any delivery charges.”

AATM urged the FCC to clarify that ringless voicemail messages do not violate the TCPA or, alternatively, exercise its authority to grant a retroactive waiver to AATM and its customers for use of the technology.

“Business should be permitted to communicate with consumers in a non-intrusive manner by inserting voicemail messages directly on voicemail servers, without dialing the consumers’ cellular telephone lines and without resulting in unwanted delivery charges to the consumers,” the petitioner argued. “Likewise, consumers should be afforded the opportunity to mitigate the number of intrusive calls to their cellular telephone lines by allowing businesses to communicate with them by voicemail, such that consumers can retrieve the business’s communications if, when, and how they see fit.”

An adverse ruling could subject AATM to “potentially substantial damages,” the company wrote, and could incentivize “plaintiffs to pursue potentially devastating class actions based on technical violations of an ambiguous rule – even though Congress never expressed an intention to regulate voicemail or to permit a private right of action arising from the receipt of voicemail.”

The FCC received thousands of comments on the petition, with business groups and advertisers throwing their support behind ringless voicemail technology and consumer advocates and some regulators speaking out against them. The state attorneys general of Kentucky, Massachusetts and New York filed a joint comment on the petition, arguing that the messages would increase costs for consumers with prepaid phones or limited minutes, and could result in consumers missing an important message if their voicemail becomes “clogged with unwanted messages.” Thousands of consumers, mostly opposing the petition, also filed comments with the FCC, demonstrating how strongly many consumers feel about this issue.

On June 21, 2017, AATM withdrew its petition. While the reasons are unknown, it’s likely that AATM, faced with a huge volume of comments in opposition to the petition, feared an adverse ruling was inevitable.

To read AATM’s petition to the FCC, click here.

Why it matters: This is the second ringless voicemail petition filed in recent years that has been withdrawn. Without an FCC ruling on this issue, whether ringless voicemail is covered by the TCPA remains unclear. While no ruling is better than an adverse ruling for companies utilizing this technology, great uncertainty remains. AATM likely thought the time was right for a favorable ruling given the change in leadership at the FCC, but the public outcry in opposition to permitting such communications may have made it rethink its strategy. For now, marketers using this technology should proceed with caution given the lack of clarity on the issue.

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En Banc D.C. Circuit Declines Junk Fax Opt-Out Appeal

By Christine M. Reilly, Chair, TCPA Compliance and Class Action Defense | Diana L. Eisner, Associate, Litigation

Refusing to reconsider a panel decision invalidating the Federal Communications Commission’s Solicited Fax Rule en banc, the U.S. Court of Appeals for the District of Columbia Circuit moved the issue one step closer to resolution.

In a 2006 order, the FCC established the Solicited Fax Rule, which required that fax advertisements sent with a recipient’s prior express invitation or permission contain an opt-out notice with specified information. Over the years, dozens of companies were granted waivers from compliance with the rule. One Telephone Consumer Protection Act (TCPA) defendant—a pharmaceutical company facing the potential of $150 million in liability for allegedly failing to include the required opt-out notice in a series of faxes sent to consenting recipients—challenged the rule in a petition to the FCC.

When the agency upheld the rule, the pharmaceutical company sought review from the D.C. Circuit, joined by several other parties on both sides of the issue.

In March, a federal appellate panel struck down the rule.

The plaintiffs appealed the decision to the en banc D.C. Circuit, which issued a one-sentence order denying the petition without further comment.

To read the order in Bais Yaakov of Spring Valley v. FCC, click here.

Why it matters: The D.C. panel’s decision to strike down the Solicited Fax Rule was a significant victory for TCPA junk fax defendants. The en banc court’s refusal to rehear the case moves it one step closer to resolution and could sound the death knell for class actions involving solicited faxes sent without the detailed opt-out notice required by the regulations.

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