The late Justice Scalia often said, “The law means what it says and says what it means.” The ever-evolving Telephone Consumer Protection Act (“TCPA”) sometimes tests that maxim. But recently, in a case captioned Bais Yaakov v. ACT, the First Circuit Court of Appeals held that the TCPA does mean what it says regarding facsimile transmissions (“faxes”). The Court held that Congress only intended to require senders to include a fax opt-out provision with unsolicited faxes, not with every fax that they send.
How does the Bais Yaakov decision affect fax opt-out requirements?
The Federal Communications Commission promulgates regulations to implement the TCPA. Up until 2018, one such regulation required that all faxes include an opt-out provision. In repealing the opt-out rule’s application to solicited faxes, the FCC followed a decision by the D.C. Circuit Court of Appeals that held that the rule’s application to solicited faxes was unconstitutional. An important note: The TCPA statute of limitations is at least four years from the date of the allegedly offending fax. As a result, the fax opt-out rule may still come into play for faxes sent prior to the repeal on November 14, 2018. In Bais Yaakov, the First Circuit addressed whether that fax opt-out requirement was valid for faxes sent while the fax opt-out rule was still in effect.
Bais Yaakov is a small, private high school in Monsey, New York. College admissions test administrator ACT, Inc. sent Bais Yaakov three faxes after the school had requested information concerning the test years earlier. None of the faxes that ACT sent included opt-out information. Bais Yaakov sued ACT alleging violations of the TCPA and the FCC’s opt-out regulation. ACT countered that the regulation was invalid based on its direct conflict with TCPA statutory language that only requires unsolicited faxes to include opt-out language. The trial court agreed with ACT, prompting Bais Yaakov to appeal the decision.
Among other issues before it, the First Circuit considered the challenge to the FCC’s fax opt-out rule. Reasoning as Justice Scalia would, the Court found that the TCPA statute prohibits sending unsolicited faxes unless the fax includes an opt-out notice. As a result, the Court found that the FCC did not have the authority to expand Congress’ language to include all faxes, whether unsolicited or not. If Congress had wanted to require opt-out notices on all faxes, the Court held, then Congress would have said as much in the language of the statute. Given that the statute contains no ambiguity or gap for the FCC to resolve or fill, the Court held that the FCC’s opt-out regulation is, therefore, invalid and overinclusive.
What does the Bais Yaakov decision mean for your business?
The Bais Yaakov decision provides some further clarity to telemarketers who send faxes. As the First Circuit recognized, every circuit court that has addressed the FCC’s opt-out regulation has come to the same conclusion – including the D.C. Circuit, the Third Circuit, the Sixth Circuit, and the Eighth Circuit, respectively. Sending faxes carries enough complication. This case helps eliminate some of that uncertainty by separating unsolicited faxes from faxes sent to those who had previously opted-in by, for example, providing a fax number or having an established business relationship with the telemarketer.
It is important to note and worth repeating that while the FCC did eventually eliminate this regulation, the 4-year statute of limitations has yet to run on all faxes sent when the opt-out notice requirement for solicited faxes was last in effect. With the fax opt-out rule still applicable in some cases, this decision can be an important avenue of defense against any claimed violations that may still be viable.
Hire experienced TCPA attorneys.
The TCPA is in a constant state of flux. New technology and ways of communicating with customers develop at a prodigious rate. Congress, the FCC, and courts are often left behind with poor tools to try to catch up. That leaves telemarketers in a precarious place of having to resolve issues such as what type of fax they are sending, what level of consent they have, andwhether an opt-out message needs to be included in order to avoid TCPA violations and potential litigation.
Instead of trying to navigate this ocean of complexity on your own, it is prudent to hire experienced TCPA attorneys to assist you. Retaining a legal team with extensive TCPA experience and telemarketing industry knowledge will let you run your business without having to spend valuable time on following all the latest TCPA developments. The attorneys at Klein Moynihan Turco have years of experience working with telemarketers to help ensure that they stay TCPA compliant.
If you need assistance with updating your telemarketing practices and procedures or defending against a TCPA lawsuit, please email us at info@kleinmoynihan.com or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice nor is it a substitute for seeking legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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