Bais Yaakov of Spring Valley v. FCC: 852 F.3d 1078 (D.C. Cir. 2017).

• Author: Capes, Kristin

In Bais Yaakov of Spring Valley v. FCC, (1) the United States Court of Appeals for the District of Columbia Circuit vacated an FCC Order which interpreted the FCC's 2006 Solicited Fax Rule to be lawful. (2) The Court held that a provision of the 2006 Solicited Fax Rule, which required businesses to include an opt-out notice in their solicited fax advertisements, was unlawful. (3)

BACKGROUND

When the Junk Fax Prevention Act was enacted in 2005, it placed strict limitations on who companies could send unsolicited fax advertisements to, and required that all unsolicited fax advertisements include an opt-out notice. (4) Under the Junk Fax Prevention Act, the FCC was given the authority to make regulations to implement the act. (5) In 2006, the FCC issued the Solicited Fax Rule, which included a provision requiring businesses who send out solicited fax advertisements to include opt-out notices. (6)

In 2010, Petitioner Anda requested a declaratory judgment from the FCC establishing that they were not required to include opt-out notices in their fax advertisements to entities who had given them permission to send the facsimiles. (7) Petitioner Anda requested the declaratory judgment in response to earlier litigation they had been defendants in. (8) The earlier litigation was a class action suit, in which the plaintiffs sought $150 million in damages from Petitioner Anda because their fax advertisements did not meet the requirements of the FCC's Solicited Fax Rule. (9) Many of plaintiffs who sought damages for the lack of opt-out notices on Petitioner Anda's fax advertisements were businesses who had given Petitioner Anda express permission to send fax advertisements. (10)

In response to Petitioner Anda's declaratory judgment request, the FCC stated that it did have the authority under the Junk Fax Prevention Act to require companies to include opt-out notices in their solicited fax advertisements, but that they would give a waiver out for any faxes sent without notices prior to April 30, 2015. (11) In response to the FCC's ruling, Petitioner Anda and the other companies who had joined onto the declaratory judgment request sought a review of the decision from the United States Court of...