The Federal Communications Commission (“FCC”) has solicited public comment on its rule that requires certain opt-out language on faxes for which the recipients have agreed to receive. If the language is not included, the fax sender is subject to statutory damages. Seizing on this rule, class action lawsuits have proliferated. In these lawsuits, plaintiffs are seeking statutory damages—millions of dollars in damages—for engaging in consensual communications.
Spencer Fane Britt & Browne (Joshua Dickinson and Shilee Mullin) is defending one such “blast fax” class case in federal court in Nebraska.
That suit alleges claims for both solicited and non-solicited fax advertisements sent to the putative class in alleged violation of the TCPA. The 8th Circuit has recently heard a challenge to the FCC’s regulations of solicited faxes, and ultimately held that under the Hobbs Act, defendants cannot challenge the FCC regulations at the district court level, and instead must first challenge the regs with the FCC. The Court intimated, however, that the regulations were over-reaching. The litigants in that case are seeking cert. Spencer Fane, on behalf of its client, filed a petition (as did several other entities) with the FCC challenging the rule per the 8th Circuit’s directive. The FCC’s request for public comment signals that the FCC is giving serious consideration to suspending/amending its regulations. This would be a huge victory, as challenges to these regulations have been ongoing without success for years, and expensive class litigation over the issue continues. There are also broader implications to the debt collection industry as the FCC has also over-reached with respect to regulations of certain types of collection calls. We hope this to be the first of several regulatory reforms.