Plaintiff Intervenor Petitioners Challenge Majority Opinion in Bais Yaakov, Fail to Address Standing to Do So

As we’ve previously reported, on March 31, the DC Circuit issued a 2-1 opinion in the Bais Yaakov appeal holding that “the FCC’s 2006 Solicited Fax Rule is . . . .unlawful to the extent that it requires opt-out notices on solicited faxes.” Slip Op. at 4. Given the profound impact we expect that ruling to have in TCPA fax litigation, it is no surprise that the plaintiffs’ bar is fighting that decision: on April 28, 2017, the plaintiff intervenors in the Bais Yaakov appeal filed a petition for rehearing en banc before the full D.C. Circuit. Continue reading

FCC’s Loss on Fax Rule Could Curb Explosion of TCPA Suits

TCPA Blog contributor Justin Kay was recently quoted in the Law360 article, “FCC’s Loss on Fax Rule Could Curb Explosion of TCPA Suits.” The D.C. Circuit’s recent decision negating an FCC regulation requiring opt-out notices on solicited faxes is likely to have long-term consequences for TCPA class actions. Continue reading

D.C. Circuit refutes FCC’s Authority to Require Opt-out Notices on Solicited Faxes . . . and Chairman Pai Agrees

In a post immediately following the November 8, 2016 oral argument in Bais Yaakov of Spring Valley v. FCC, No. 14-1234 (D.C. Cir.), we noted that, based on the lines of questioning from the bench, the three judge panel of Judges Brett M. Kavanaugh, Cornelia T.L. Pillard, and A. Raymond Randolph appeared to be leaning toward a 2-1 decision with Judges Kavanaugh and Randolph likely forming the majority that would find that the FCC was not empowered to require opt-out notices on solicited faxes. On March 31, the DC Circuit issued its opinion and confirmed our analysis, finding in a 2-1 opinion authored by Judge Kavanaugh (joined by Judge Randolph) that “the FCC’s 2006 Solicited Fax Rule is . . . .unlawful to the extent that it requires opt-out notices on solicited faxes.” Slip Op. at 4. The Court therefore vacated the 2006 Fax Order and remanded to the FCC for further proceedings. It declined to address the propriety of the waiver program, finding it moot in light of its holding. Slip. Op. at 11 n.2. Continue reading

D.C. Circuit Hears Oral Argument in Cross Appeals of Fax Waiver Order

On November 8, 2016, a three judge panel (Judges Brett M. Kavanaugh, Cornelia T.L. Pillard, and A. Raymond Randolph) of the United States Court of Appeals for the D.C. Circuit heard oral argument in Bais Yaakov of Spring Valley v. FCC, No. 14-1234. The argument (which lasted ninety minutes) was divided into two portions: argument regarding whether the FCC had authority to require the inclusion of opt-out notices on solicited faxes, and argument regarding whether the FCC was authorized to grant retroactive waivers of that requirement. Our prior posts on the appeal can be found here, here, and here. The audio recording of the argument is available here. Continue reading

Plaintiff Petitioners File Notice of Supplemental Authority in Consolidated Appeal of Anda Order

On October 13, 2016, counsel for class action plaintiffs (“Plaintiff Petitioners”) in Bais Yaakov of Spring Valley v. FCC, No. 14-1234, filed a notice of supplemental authority with the United States Court of Appeals for the D.C. Circuit, arguing that the court’s recent decision in PHH Corp. v. CFPB, No. 15-1177, 2016 WL 5898801 (D.C. Cir. Oct. 11, 2016), supports their arguments that the FCC’s October 2014 Anda Order (the “Anda Order”) “constitutes an impermissible retroactive legislative or adjudicatory rule” and violates separation of powers principles. Continue reading

Oral Argument Scheduled In The Consolidated Appeal From The FCC’s October 2014 Anda Order

After recently scheduling oral argument in the consolidated appeal from the July 2015 Declaratory Ruling and Order, the United States Court of Appeals for the D.C. Circuit has scheduled oral argument in the consolidated appeal from the Federal Communication Commission’s (“FCC”) October 2014 Final Order (the “Anda Order”) for Tuesday, November 8, 2016.  As we previously reported, in the Anda Order the FCC found that it had the statutory authority to  promulgate a rule requiring  that the opt-out notice Congress specified in the Junk Fax Prevention Act (“JFPA”) must be present on faxes for the sender to take advantage of the Established Business Relationship (“EBR”) exemption must also appear on solicited faxes. The FCC also decided that, because of reasonable confusion surrounding the rule, there was good cause to waive the rule for fax senders who had previously sent solicited faxes without an opt-out notice. Following the release of the Anda Order, both class action plaintiffs (“Plaintiff Petitioners”) and class action defendants (“Defendant Petitioners”) filed cross-appeals, which were consolidated and centralized in the D.C. Circuit as Bais Yaakov of Spring Valley, et al. v. FCC, No. 14-1234. Continue reading

Briefing continues in cross appeals of Anda Order

In its October 2014 Final Order (the “Anda Order”), the Federal Communications Commission found that it had the statutory authority to regulate solicited faxes by promulgating a rule that requires an opt-out notice on all such faxes, but also found that because of reasonable confusion surrounding the regulation, there was good cause to waive the rule for fax senders who had previously sent solicited faxes without the opt-out notice. Continue reading