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.
Justin observed that “with the FCC rule thrown out, the issue of whether the fax is solicited or not comes back into play, and it’s likely that the plaintiffs’ bar will have a much harder time showing that this is not an individualized issue and that the class should be certified.” He also noted that, “Regardless of how the D.C. Circuit comes out on the issue of the 2015 order, you’re going to see this new opinion cited in order to either focus on the majority’s reasoning that this is the statutory language and the FCC went beyond that, or to back the dissent’s focus on what Congress’ broader purpose is in passing the statute and that you can’t hamstring the FCC by narrowly construing that grant of authority.”
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