On February 26, 2019, the law firm Akin Gump Strauss Hauer & Feld LLP (“Akin Gump”) filed a petition (“Petition”) with the Federal Communications Commission (“Commission”) requesting that the Commission “expeditiously clarify” the definition of “sender” under the “Junk Fax Rules” of the Telephone Consumer Protection Act of 1991 (“TCPA”).  The Commission now seeks comments on the Petition.  Comments are due on or before April 8, 2019, while reply comments are due on April 23, 2019.

In 2006, the Commission issued its Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991; Junk Fax Prevention Act of 2005, 21 FCC Rcd. 3787 (2006) (“2006 Junk Fax Order”). 

In the 2006 Junk Fax Order, the Commission stated,

We . . . emphasize that under the Commission’s interpretation of the facsimile advertising rules, the sender is the person or entity on whose behalf the advertisement is sent. In most instances, this will be the entity whose product or service is advertised or promoted in the message.

See Id. at 3808 para. 39 (emphasis added).  However, the Commission did not elaborate on those instances when the sender is not the entity whose product or service is advertised or promoted in the message.  In its Petition, Akin Gump seeks clarification on exactly when that exception applies.

Akin Gump notes, “many advertisers over the years have fallen victim to unscrupulous fax broadcasters that misrepresent their credentials and business practices in order to induce advertisers to do business with them, and then go on to purposefully or recklessly commit TCPA violations,” which strips the company of its ability to control the fax campaign or ensure compliance with the TCPA.  See Petition, pp. 2-3.   Akin Gump argues that under circumstances where the advertiser cannot control the fax campaign or prevent TCPA violations, it is only equitable if the fax broadcaster is held solely liable. Id. at 3.

Among other reasons to clarify the 2006 Junk Fax Order, Akin Gump suggests that it may result in a decrease in nuisance litigation as it believes more junk fax cases would be resolved at the summary judgment phase.  It also argues that clarification would satisfy Congressional intent because when the Commission crafted the 2006 Junk Fax Rules, Congress instructed it to consider, the “most effective methods of preventing facsimile advertising abuses.” Id. at 5.  Further, it argues, clarification from the Commission would resolve judicial confusion where courts in the First, Sixth, Seventh, Eighth, Ninth and Eleventh Circuits all have different standards for determining “sender” liability under the 2006 Junk Fax Order.

Akin Gump’s complete Petition can be found here.