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Federal Court in Missouri holds technical failure to comply with the FCC’s TCPA opt-out notice requirements on fax advertisements does not confer standing on recipient who consented to receive the faxes

The FCC’s TCPA “opt-out” notice requirements for sending solicited [1] faxes continues to be weakened. Most notably, on March 31, the DC Circuit issued an opinion in Bais Yaakov of Spring Valley v. FCC, No. 14-1234 (D.C. Cir. 2017) holding that “the FCC’s 2006 Solicited Fax Rule is . . . unlawful to the extent that it requires opt-out notices on solicited faxes.” Slip Op. at 4. The DC Circuit noted the absurd result in which fax advertisers faced potentially ruinous liability for sending faxes to a class of plaintiffs for failing to include opt-out notices on faxes that the recipients had given the sender permission to send. Slip Op. at 7. In eviscerating the opt-out requirement for solicited faxes, the DC Circuit Explained:

Although the Act requires an opt-out notice on unsolicited fax advertisements, the Act does not require a similar opt-out notice on solicited fax advertisements—that is, those fax advertisements sent with the recipient’s prior express invitation or permission. Nor does the Act grant the FCC authority to require opt-out notices on solicited fax advertisements.

Slip Op. at 8. While the DC Circuit’s opinion may ultimately be a death blow to the rule with regard to solicited faxes, stay tuned: the plaintiff in Bais Yaakov filed a petition for rehearing en banc before the full D.C. Circuit.

There are, however, other arguments to make with regards to solicited faxes, including standing. In St. Louis Heart Center, Inc. v. Nomax, Inc., the United States District Court for the Eastern District of Missouri dismissed a putative class action case based solely on deficient opt-out language in fax advertisements when it was undisputed the recipient gave the sender permission to send the fax advertisements. No. 4:15-CV-517 RLW, 2017 U.S. Dist. LEXIS 39411 (E.D. Mo. Mar. 20, 2017). In that case, the plaintiff filed a putative class action alleging the defendant sent plaintiff and other class members 12 fax advertisements that do not satisfy the technical requirements of 47 C.F.R. § 64.1200 because the opt-out notices do not contain a “fax number to opt out” or a phone number to opt out and do not state that the sender “will comply within thirty days or they are in violation of the law.” Id. *4. The defendant moved to dismiss, arguing that based on the Supreme Court decision of Spokeo v. Robins,[2] the plaintiff could not allege any “concrete and particularized” injury from receiving faxes when the plaintiff consented to receiving them in the first place. The district court agreed, holding that while the opt-out language included in the 12 faxes may have been technically deficient, it was sufficient to convey “the means and opportunity to opt-out of receiving future faxes, regardless of whether the faxes also meet all of the technical requirements” of the applicable regulations. Id. at *6. The district court further held that “[u]nder Supreme Court and Eighth Circuit precedent, [plaintiff] has not alleged a concrete or particularized harm resulting from receiving faxes that [plaintiff] both invited and did not rebuke.” Id. “Further, a heightened risk of receiving future unwanted fax advertisements does not present a concrete injury as a matter of law.” Id. Finding that plaintiff had not alleged an injury in fact as required by Article III and his complaint asserts a bare procedural violation, divorced from any concrete harm, the district court dismissed plaintiff’s complaint with prejudice.[3] Id.

This post was drafted by Patrick McLaughlin, an attorney in the Spencer Fane St. Louis, MO office. For more information, visit spencerfane.com.

[1] Faxes sent with prior express permission or consent.

[2] 136 S.Ct. 1540 (2016)

[3] It’s important to note the plaintiff asked the district court to remand the case, which had originated in state court, but the district court declined, holding that dismissal is appropriate when a plaintiff lacks standing.  Id. at *8