Opt-Out Language Required Even on Requested Fax Advertisements, Circuit Court Rules
Opt-out language is required on fax advertisements even if that fax was requested, a federal appeals court ruled Tuesday. The 8th U.S. Circuit Court of Appeals based its decision heavily on the interpretation of the FCC, which said the opt-out language was required even after obtaining a potential recipient’s consent. “We may not reject the FCC’s plain-language interpretation of its own unambiguous regulation,” the court said, reversing a lower court that found against the plaintiff. “Our reversal today, therefore, places the parties back before the district court where [defendant] faces a class-action complaint seeking millions of dollars even though there is no allegation that he sent a fax to any recipient without the recipient’s prior express consent."
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The Telephone Consumer Protection Act prohibits faxing unsolicited ads without including language telling the recipient how to opt out of future ads. Anyone who feels the rule has been violated can seek $500 in damages for each violation, or actual monetary loss, whichever is greater. The rule explicitly said “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.”
The court solicited the views of the FCC as an amicus, and the FCC confirmed the plain-language interpretation of its regulation. “The FCC explained that the regulation reached faxes for which the recipient had granted consent because consent, once granted, need not be interpreted as permanent,” wrote Judge Michael Melloy for the unanimous court. “The FCC sought to ensure that even recipients who consented to receive a fax could easily and without expense stop the sending of any possible future faxes."
"We must defer to the FCC’s plain-language interpretation of its own regulation unless the regulation is ‘contrary to unambiguous statutory language’ or ‘application of the regulation is arbitrary or capricious,'” the court wrote. Judges Roger Wollman and Steven Colloton also heard the case, which was Nack v. Walburg.