Prior to the Supreme Court’s denial of petition for certiorari filed by the class action plaintiffs in  Bais Yaakov of Spring Valley v. FCC (an appeal we have been monitoring since the briefing in the D.C. Circuit up through the recent cert petition briefing), TCPA Blog contributor Justin Kay spoke with Legal NewsLine about the petition and the Supreme Court’s likely response.

In the article, “To Plaintiffs’ Dismay, SCOTUS Likely Won’t Review ‘Case-Killer’ TCPA Decision,” Justin discussed the background of the case, starting with the 2006 FCC Order which purported to require on solicited facsimile advertisements the same opt-out language required on faxes sent pursuant to an Established Business Relationship, the resulting flood of class actions that led to a 2014 FCC Order affirming the 2006 Order, and the appeal of that 2014 Order to the D.C. Circuit.

Justin observed that “[t]he D.C. Circuit disagreed with the FCC and held that although the act requires an opt-out notice on unsolicited fax advertisements, it does not require a similar opt-out notice on solicited fax advertisements,” and as a result, “…plaintiffs’ attorneys were faced with a much tougher hill to climb,” since “District courts have already started using the decision to deny certification of such classes. That’s why the plaintiffs are seeking Supreme Court review; it’s a case-killer.” Justin predicted that the Supreme Court would deny the petition because “the reasons typically justifying Supreme Court review are just not present,” including the fact that because of the change in administration and resulting Republican majority at the Commission, “the FCC no longer supports the plaintiffs’ interpretation.”