D.C. Circuit throws out Federal Communications Commission’s rule requiring senders of “solicited” faxes to provide recipients opt-out notices

The D.C. Circuit today issued a 2-1 decision in Bais Yaakov of Spring Valley v. FCC, which tossed a Federal Communications Act rule requiring senders of so-called "solicited" faxes to provide recipients notice of a right to opt-out. The first few sentences of Judge Kavanaugh's majority opinion provides an overview:

Believe it or not, the fax machine is not yet extinct. Some businesses send unsolicited advertisements by fax. This case arises out of Congress’s efforts to protect consumers from unsolicited fax advertisements. The Junk Fax Prevention Act of 2005 bans most unsolicited fax advertisements, but allows unsolicited fax advertisements in certain commercial circumstances. When those unsolicited fax advertisements are allowed, the Act requires businesses to include opt-out notices on the faxes. See 47 U.S.C. § 227(b). In 2006, the FCC issued a rule that requires businesses to include opt-out notices not just on unsolicited fax advertisements, but also on solicited fax advertisements. The term “solicited” is a term of art for faxes sent by businesses with the invitation or permission of the recipient. In this case, businesses that send solicited fax advertisements contend that the FCC’s new rule exceeds the FCC’s authority under the Act. The question is whether the Act’s requirement that businesses include an opt-out notice on unsolicited fax advertisements authorizes the FCC to require businesses to include an opt-out notice on solicited fax advertisements. Based on the text of the statute, the answer is no. We hold that the FCC’s 2006 Solicited Fax Rule is therefore unlawful to the extent that it requires opt-out notices on solicited faxes. The FCC’s Order in this case interpreted and applied that 2006 Rule. We vacate that Order and remand for further proceedings. 

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