DC Circuit invalidates FCC's opt-out requirement for solicited faxes

Good news for businesses that use fax machines to communicate with customers: A panel of the D.C. Circuit has just struck down the FCC's 2014 order mandating that even faxes requested by the recipient that contain advertising material include a special opt-out notice. The decision issued today in Bais Yaakov of Spring Valley v. FCC, No. 14-1234 (D.C. Cir. Mar. 31, 2017), is available here (pdf).

Background

The case arose out of a loophole that exposed many well-meaning businesses to the risk of class actions under the Junk Fax Prevention Act of 2005. That Act banned advertisements sent via fax unless (1) the recipient had given permission to send the fax or (2) for unsolicited faxes, the sender and the recipient had an established business relationship, the recipient had made its fax number available in certain specified ways, and the fax had special disclosures about how to opt out of receiving future faxes. 47 U.S.C. § 227(b)(1)(C). The required opt-out notice