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D.C. Circuit Hears Oral Argument on TCPA Opt-Out/Retroactive Waiver Appeals

Printer-958139_960_720By Alexander M. Smith

In October 2014, the FCC issued an order affirming its position that the Telephone Consumer Protection Act (TCPA) requires senders of fax advertisements to include an opt-out notice on those faxes, even if the recipient had previously consented to receive those faxes.  That order also acknowledged, however, that some parties who sent solicited faxes “may have been reasonably uncertain” about this requirement and granted a retroactive waiver of the opt-out requirement.   The FCC’s efforts to split the baby prompted appeals from both sides before the D.C. Circuit:  a group of class action plaintiffs appealed on the basis that the retroactive waiver was improper, and a separate group of class action defendants appealed on the basis that the TCPA only empowers the FCC to regulate unsolicited faxes.  This Tuesday, the court heard oral argument on both appeals.  As Law360 reports, the panel appeared “sympathetic” to the defendants’ position that the FCC “overstepped its authority” by regulating solicited faxes.