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Telecommunications Update – Companies Seek Waiver of Opt-Out Notices for Fax Advertisements

June 9, 2016

Companies Seek Waiver of Opt-Out Notices for Fax Advertisements

The FCC’s Consumer and Governmental Affairs Bureau is seeking comment on two Petitions, filed by Warner Chilcott Corporation and Wedgewood Village Pharmacy, concerning the Commission’s Rules on opt-out notices for fax advertisements.  The petitions are seeking a waiver of the Commission’s rules requiring that an opt-out notice be included in fax ads sent to a consumer who has provided prior express invitation or permission to receive such fax ads. 

The Telephone Consumer Protection Act (“TCPA”), in part, prohibits the use of any telephone facsimile (fax) machine, computer or other device to send an “unsolicited advertisement” to telephone fax machines.  Additionally, the Junk Fax Prevention Act requires the sender of an unsolicited fax advertisement to provide specified notice and contact information on the fax that allows recipients to “opt out” of any future fax transmissions from the sender.  In implementing the Junk Fax Prevention Act, the Commission adopted rules requiring that fax advertisements sent to a recipient that previously provided prior express invitation or permission to the sender, must include an opt-out notice.  A footnote in the Order adopting the rules, however, stated that the opt-out notice requirement only applied to unsolicited advertisements, causing much confusion as to whether the opt-out notice requirement applied to fax ads sent with prior express permission of the recipient.

In response to the confusion raised by its Order, the Commission issued retroactive waivers of the Commission’s opt-out requirements for fax advertisement senders to provide temporary relief from any past obligation to provide the opt-out notice to such recipients as required by the Commission’s rules.   Those waivers, however, only applied to the individual petitioners that requested such a waiver and were listed in the Anda Order.  The Anda Petitioners were provided with a six month window to come into compliance with the opt-out requirement. 

The Petitioners are seeking retroactive waivers of the opt-out notice requirement for fax ads sent where prior express invitation or permission had allegedly been obtained from the recipient.  Petitioners argue that they are similarly situated to parties who were granted retroactive waivers from this requirement by the Commission in its Anda Order and as such are  asking for similar waivers of the opt-out notice for their past obligations with fax advertisements.  

If your company would be interested in submitting a comment in response to these Petitions or believe that your company is similarly situated and should be afforded similar treatment as those in the Anda Order, please contact one of the telecommunications specialists at Shulman Rogers and we will assist you with this process and proceeding.


Alan S. Tilles

Georgina L.O. Feigen