Supreme Court Addresses TCPA Fax Issue

June 24, 2019

TCPA Fax Decision

As the United States Supreme Court (“SCOTUS”) wraps up its term, it released a decision concerning whether a federal district court is obligated to follow a Federal Communications Commission Order (“FCC”) regarding the junk fax provisions of Telephone Consumer Protection Act (“TCPA”).   Industry pundits had been patiently awaiting a decision on the TCA fax issue for some time.

How did SCOTUS resolve the TCPA fax issue?

This case concerns the interplay between two federal statutes: the TCPA and the Hobbs Act (a law that grants exclusive authority to federal courts of appeals to hear challenges to FCC orders).  The case made its way to SCOTUS after a district court in West Virginia dismissed a TCPA class action on the basis that a fax promoting a free physicians reference guide did not constitute an unsolicited advertisement within the meaning of the TCPA.  This TCPA fax decision was appealed as the dismissal seemingly contradicted an FCC Order from 2006, which explicitly concluded that fax messages which promote free goods or services are unsolicited advertisements under the statute.  The question presented to SCOTUS was whether the West Virginia district court acted improperly by not following the FCC Order.  Ultimately, however, SCOTUS did not directly resolve this issue, instead opting to remand the case back to the Fourth Circuit Appellate Court to determine whether the 2006 FCC Order is properly categorized as: (1) a legislative rule, in which case district courts are required to follow it; or (2) an interpretative rule which, according to SCOTUS, “may not be binding on a district court, and a district court therefore may not be required to adhere to it.”

Protect Your Business from a TCPA Fax Lawsuit

This TCPA fax case should reinforce the fact that facsimile marketing regulations continue to be in a state of flux.  While those in the industry had hoped for some clarity from SCOTUS, observers will have to wait as the judicial process continues.  Until such time, other rules applicable to fax marketing are unlikely to be altered in the near future.  These include, among others, nuanced and technical requirements involving disclaimer language and opt-out notices that must appear on the face of fax advertisements.  As the marketing industry has learned, the cost of non-compliance with these mandates can be devastating.  Accordingly, it is imperative that businesses operating in this space work closely with knowledgeable counsel prior to engaging in any fax marketing campaign.

If you are interested in learning more about this topic, need to review your fax marketing practices and procedures or if you are the subject of a TCPA fax lawsuit, please e-mail us at, or call us at (212) 246-0900.

The material contained herein is provided for information purposes only and is not legal advice, nor is it a substitute for obtaining 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.

Attorney Advertising

Similar blog posts:

What is an Advertisement in a TCPA Fax Case?

Fireproofing Company Hit with Fax TCPA Class Action

Class Certification Denied in Fax Lawsuit


David Klein

David Klein is one of the most recognized attorneys in the technology, Internet marketing, sweepstakes, and telecommunications fields. Skilled at counseling clients on a broad range of technology-related matters, David Klein has substantial experience in negotiating and drafting complex licensing, marketing and Internet agreements.

Trending Topics

data CIPA law Swigert law consumer protection data on cumputer screen

Swigart Law Group CIPA Demands

Readers of this blog likely know about the wave of consumer privacy litigation directed at online companies’ collection of consumer data. A litany of these

Read More »