FCC Poised To Open the Floodgates

The recent change in presidential administrations may bring about a corresponding change in the Telephone Consumer Protection Act (TCPA) regulations, which protect consumers from unsolicited advertisements through telephone calls, text messages or facsimile transmissions. With a Republican administration and a 3-2 Republican majority, companies have reason to be optimistic that the FCC will shift from rulemaking to protecting businesses from TCPA lawsuits, especially class actions.

In Bais Yaakov of Spring Valley v. FCC, the DC Circuit rejected the FCC’s Solicited Fax Rule, which required businesses to include opt-out notices not only on unsolicited fax advertisements but also on solicited fax advertisements (i.e., faxes sent with the recipient’s “prior express invitation or permission”). The DC Circuit disagreed, reasoning that Congress had drawn a clear line in the TCPA text between unsolicited and solicited advertisements, and that the FCC could not cross that line. The FCC has authority to implement rules and regulations regarding unsolicited fax advertisements, the court reasoned, but not faxes sent with “prior express invitation or permission” (i.e., outside the scope of the TCPA).

The changes in the FCC’s composition and the DC Circuit’s forthcoming ruling in ACA International v. FCC have created an uncertain landscape for the TCPA. The DC Circuit’s recent decision in Bais Yaakov may be only the first in a wave of decisions shifting the focus from the protection of consumers to the safeguarding of business interests.