Plaintiffs’ Firms Ask FCC to Vacate 117 Retroactive Waivers

Plaintiffs’ firms recently filed six different applications for review of the Consumer and Governmental Affairs Bureau’s Order granting 117 petitions for retroactive waivers of the opt-out notice requirement for solicited faxes (47 C.F.R § 64.1200(a)(4)(iv)). Because the deadline for filing a petition for reconsideration pursuant to 47 C.F.R. § 1.429 had passed, several firms have tried to seek reconsideration by filing applications for review pursuant to 47 C.F.R. § 1.115.

Bellin & Associates LLC and Roger Furman, Esquire filed an application for review on September 25, 2015. On behalf of multiple TCPA plaintiffs, they ask for a full FCC review of the Order, which they contend was in “excess of the Bureau’s authority and without consideration of any individual facts (or lack thereof) underlying those requests.” Specifically, the firm argues that the TCPA “does not provide the Commission with any authority to waive or otherwise impair a private cause of action that arises under it” and the “Bureau’s wholesale grant of 117 waivers of statutory private rights of action asserted in pending litigation plainly implicates separation of powers concerns.” The firm further argues that the Consumer and Governmental Affairs Bureau failed to articulate a standard for granting a waiver and failed to make individual factual findings required to issue a waiver. As relief, the firm asks the FCC to review the Order and reverse by denying all 117 waiver petitions.

Anderson + Wanca, LLC filed an application for review on September 28, 2015. The firm, on behalf of multiple TCPA plaintiffs, contends that all 117 waivers should be vacated because the TCPA does not authorize the FCC to waive its regulations in a private right of action and the underlying record does not support a presumption of confusion from the opt-out notice regulation for faxes. In the alternative, the firm seeks to vacate waivers granted to petitioners Allscripts-Misy’s Healthcare Solutions, Inc., Alma Lasers, Inc., and McKesson Corp.

Shainis & Peltzman and the Law Offices of Scott Z. Zimmermann filed four applications for review with the FCC seeking reversal of the retroactive waivers granted to Senco Brand, Inc., Healthways, Inc. and Healthways WholeHealth Networks, Inc., the RadNet Entities (RadNet Management, Inc., Beverly Radiology Medical Group and Breastlink Medical Group, Inc.), and Medservant Technologies L.L.C. In each of these applications, the firms contend that the Consumer and Governmental Affairs Bureau lacks the authority to grant retroactive waivers, and in doing so, violates the separation of powers doctrine. The firms proceed to argue that the entities granted retroactive waivers failed to “properly allege and cannot show that [they] had prior express permission” to transmit the faxes at issue and any presumption of confusion violates due process and is arbitrary and capricious. Finally, the firms argue that the retroactive waivers violate public policy and weighs against the public interest for “consumers through the private right of action to obtain damages to defray the cost imposed on them by unwanted fax ads.”

As one might imagine, numerous parties have filed oppositions to these various applications. Stay tuned for a subsequent post on these oppositions.

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