The Federal Communications Commission has in recent years received several petitions concerning the Telephone Consumer Protection Act. Responding to some of them, the FCC last week issued an order confirming that all faxed advertisements must include an opt-out notice. The FCC's notice explains:
The FCC’s rules require that a “facsimile advertisement that is sent to a recipient that has provided prior express invitation or permission to the sender must include an opt-out notice that complies with the requirements” established by the FCC. The rules specify that the opt-out notice contained in fax ads must:
(1) be clear and conspicuous and on the first page of the ad;
(2) state that the recipient may make a request to the sender not to send any future ads and that failure to comply, within 30 days, with such a request is unlawful; and,
(3) contain a domestic contact telephone number and fax number for the recipient to transmit an opt-out request. Fax ads sent pursuant to an established business relationship must also contain this opt-out information.
Even if the fax sender places an opt-out notice on its fax ad, it will not comply with the law unless the opt-out notice satisfies each requirement contained in the rule.
Also today, the Commission recognized that a number of parties who have sent fax ads with the recipient’s prior express permission may have reasonably been uncertain about whether the requirement for an opt-out notice applied to such “solicited” faxes, or erroneously believed that this requirement did not apply to such faxes. As such, the Commission granted retroactive waivers of this requirement to these fax senders to provide them with temporary relief from any past obligation to provide opt-out notices to fax recipients as required by FCC rules. At the same time, the Commission denied several requests for declaratory ruling that sought a ruling that the Commission lacked the statutory authority to require opt-out information on fax ads sent with a consumer’s prior express permission or, alternatively, that section 227(b) of the Communications Act of 1934, as amended (the Act), was not the statutory basis of that requirement. The Commission also confirmed that such faxes must include a fully compliant opt-out notice.
The FCC's full order is available here.
