FCC Loses Fax Opt-Out Ad Ruling

The Tom Wheeler Federal Communications Commission suffered another defeat in the opt-out advertising category March 31 as a three-judge panel of the US Court of Appeals—in a 2-1 decision—overturned a ruling regarding faxed advertisements, saying the FCC had exceeded its authority. The FCC in 2014 upheld a previous conclusion that its rule implementing The Junk Fax Prevention Act of 2005 required opt-out notices not only on unsolicited faxed ads but solicited ones as well. That was more than an academic exercise since the FCC was responding to a 2010 request for a declaratory ruling by a drug company, Anda, that wanted the FCC to find the rule didn't apply to solicited faxes—since that meant the recipient had agreed to get them. Anda was being sued for $150 million by pharmacies that claimed, even though they had agreed to get the faxes, there should have still been an opt-out option. The FCC agreed; the court panel did not.