The FCC recently agreed to grant limited waivers for violations of its “opt out notice” rule for solicited faxes (i.e., faxes sent with the recipient’s prior express invitation or permission).  That rule requires that senders of faxes include opt-out notices on fax transmissions that contain advertisements or promotions. The FCC initially promulgated its opt-out notice rule in connection with the Telephone Consumer Protection Act (“TCPA”) and the Junk Fax Prevention Act. Because the TCPA authorizes a private right of action and statutory damages for certain violations, the opt-out notice rule has been — and continues to be — used to bring class action lawsuits that seek potentially staggering levels of monetary payment.  In its recent ruling, the FCC agreed to issue waivers of its opt-out notice rule for solicited faxes, but the ruling suggests that such requests must be filed before April 30, 2015.

A number of plaintiffs have filed lawsuits challenging the FCC’s grant of the waivers.  At the same time, some of the petitioners also are challenging the portion of the FCC’s order in which the FCC reasserted its authority under the TCPA to regulate solicited fax advertisements.  Both sets of challenges will be heard by the U.S. Court of Appeals for the District of Columbia Circuit.