Yaakov v. FCC – Will TCPA Opt-Out Requirements Be Stricken For Permissive Faxes?

By its express terms, the Telephone Consumer Protection Act (TCPA) applies only to unsolicited faxes. 47 U.S.C. § 227(b)(1)(C) & (a)(5). However, in May 2006, the FCC promulgated new rules concerning fax advertisement transmissions that stated that "[a] facsimile advertisement . . . sent to a recipient that has provided prior express invitation or permission to the sender must include an opt-out notice." In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991 Junk Fax Prevention Act of 2005, 21 F.C.C. Rcd. 3787, 3820–21 (2006). Confusingly, the 2006 FCC rule change also included a footnote stating that "the opt-out notice requirement only applie[d] to communications [constituting] unsolicited advertisements." Id. at 3818 n.154.