Supreme Court Presented with TCPA Fax Issue

October 11, 2019


The United States Supreme Court (“SCOTUS” or the “Court”) recently began its new term and immediately issued an order involving the Telephone Consumer Protection Act (“TCPA”).  Fast on the heels of a recent decision at the end of the last term in which the Court was presented with a dispute over the TCPA’s application to certain classes of unsolicited faxes, SCOTUS opining on the law once more is a matter of interest to all industry observers.   Unfortunately, however, the Court again failed to provide clear guidance for future TCPA fax case proceedings in lower courts of law.

How did SCOTUS resolve the TCPA fax issue?

In a case involving a dispute over whether a fax requesting that the recipient verify his/her contact information qualified as an unsolicited advertisement prohibit by the TCPA, SCOTUS delivered an anticlimactic result for Court watchers.  Rather than ruling on the merits of the case, SCOTUS opted to: (i) grant certiorari to the appellants; (ii) vacate the underlying decision of the Sixth Circuit Court of Appeals; and (iii) remand the case back to the Circuit Court for further consideration in light of a previous SCOTUS TCPA fax decision from the prior term.

As readers will recall, we blogged about this earlier SCOTUS decision where the Court similarly remanded a case back to the Fourth Circuit for further reconsideration on the issue of whether a 2006 Federal Communications Commission (“FCC”) Order (which explicitly concluded that fax messages which promote free goods or services are unsolicited advertisements for TCPA purposes) is properly categorized as a legislative or an interpretative rule.  There, SCOTUS determined that the answer to this question would ultimately guide courts on whether courts are bound to follow FCC guidance when ruling in TCPA fax cases.

SCOTUS’s actions with respect to the Sixth and Fourth Circuit cases clearly demonstrates that it would prefer not to address the substantive question of whether particular classes of faxes can be classified as advertisements or not.  Rather, it has decisively signaled that it prefers that the following procedural issue be decided by the circuit courts instead: whether the FCC’s 2006 Order is one that must be followed by courts of law.  To the extent that the Sixth and Fourth Circuit ultimately reach opposite conclusions on that question, it is likely that the Court would take up the issue itself.

Protect Your Business from a TCPA Fax Lawsuit

While interested parties once again had held out hope for clarifying guidance from SCOTUS, the High Court showed restraint and, as such, observers will have to continue to wait as the judicial process plays out.  As that wait continues, much of the existing regulations governing fax marketing are unlikely to be altered in the near term.  These include, among others, nuanced technical requirements involving disclaimer language and opt-out notices that must appear on the face of fax advertisements.  Because of the devasting cost of non-compliance with these mandates, 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.

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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.

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