Prepare For Deluge Of Fax Spam On Machines You Haven’t Used Since 2004

In 2005, just about the time many of us were finally giving up on fax machines, the ever-hip Congress passed the Junk Fax Prevention Act, severely restricting the use of fax machines for advertising purposes. However, a federal appeals court ruled today — when there are college students who don’t even know what a fax is — that the FCC overstepped its authority in writing the actual regulations tied to this law.

While the law effectively outlaws the sending of unsolicited ads via fax machine, the FCC rule takes the additional step of requiring an opt-out notice on faxed ads, even when the recipient had agreed to receiving these ads.

That may not sound too restrictive to you. After all, a lot of legitimate companies that blast out marketing emails now include links for recipients to unsubscribe.

But some faxed-based advertisers apparently disregarded this rule, and were sued for not giving recipients of their ads the ability to stop using them. When one of these companies asked the FCC to declare that the opt-out requirement didn’t apply to ads where the recipients had explicitly given their permission to receive the ads, the Commission maintained its earlier position, but agreed to retroactively waive application of the rule through April 2015.

The affected faxers — who apparently still exist, though we have no idea who is still getting all these faxes — appealed their petition to the D.C. Circuit Court of Appeals, which ruled today [PDF] that yes, the FCC had gone too far in its rulemaking.

“Although the [Junk Fax Prevention] Act requires an opt-out notice on unsolicited fax advertisements, the Act does not require a similar opt-out notice on solicited fax advertisements – that is, those fax advertisements sent with the recipient’s prior express invitation or permission,” explains Judge Brett Kavanaugh for the majority of the three-judge panel. “Nor does the Act grant the FCC authority to require opt-out notices on solicited fax advertisements.”

In a dissenting opinion, Judge Nina Pillard says the majority is taking a too-limited view of the FCC’s authority under the Junk Fax law to prevent “unsolicited” fax ads.

“The FCC reasonably concluded that opt-out notices are needed on all fax ads so that recipients can easily limit or withdraw their ‘invitation or permission,'” explains Pillard. “Regulation of ‘unsolicited’ advertising requires a mechanism for discerning whether someone who okayed fax ads at some point in the past is still willing to receive an advertiser’s further faxes.”

Without this opt-out requirement, Pillard contends that the court has made it more difficult for recipients of these ads to “control what comes out of their fax machines… precisely the sort of anti-consumer harm Congress intended to prevent.”