Part II – TCPA: Class Action And Litigation Updates

In a widely anticipated opinion, the D.C. Circuit has held that the Federal Communications Commission overreached when it required that solicited faxes include specific opt-out notices.¹ The result will heavily impact the plaintiff's bar moving forward and will end many pending Telephone Consumer Protection Act cases premised on faxes sent with consent that contained allegedly deficient or no opt-out language.

The FCC Overstepped Its Authority

"Believe it or not," wrote Judge Kavanaugh for the majority, "the fax machine is not yet extinct." Harkening to the underlying litigation against Anda, Inc. that ultimately resulted in the opinion, the majority noted that "[m]any of the plaintiff pharmacies in that case admitted that they had expressly given permission to Anda to send fax advertisements .... But those plaintiffs nevertheless sought over $150 million in damages from Anda because Anda's fax advertisements allegedly did not include opt-out notices that complied