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CGB Seeks Comment On Commission's Rule On Opt-Out Fax Advertisements

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Released: January 31, 2014

PUBLIC NOTICE

Federal Communications Commission

News Media Information 202 / 418-0500

445 12th St., S.W.

Internet: http://www.fcc.gov

Washington, D.C. 20554

TTY: 1-888-835-5322

DA 14-120

Released: January 31, 2014

CONSUMER AND GOVERNMENTAL AFFAIRS BUREAU SEEKS COMMENT ON

PETITIONS CONCERNING THE COMMISSION’S RULE ON OPT-OUT NOTICES ON

FAX ADVERTISEMENTS

CG Docket No. 02-278
CG Docket No. 05-338

Comment Date

:

February 14, 2014
Reply Comment Date

:

February 21

, 2014
Several petitions have been filed seeking a declaratory ruling, rulemaking, and/or waiver
concerning section 64.1200(a)(4)(iv) of the Commission’s rules, which requires fax advertisements sent to
a consumer who has provided prior express invitation or permission to include an opt-out notice.1 With
this Public Notice, we seek comment on these petitions as described below.

1 See Petition of Forest Pharmaceuticals, Inc., for Declaratory Ruling and/or Waiver Regarding Substantial
Compliance with Section 64.1200(a)(4)(iii) of the Commission’s Rules and for Declaratory Ruling Regarding the
Statutory Basis for the Commission’s Opt-Out Notice Rule with Respect to Faxes Sent with the Recipient’s Prior
Express Invitation or Permission
, CG Docket No. 05-338 (filed June 27, 2013) (Forest Petition); Petition of Staples,
Inc. and Quill Corporation for a Rulemaking to Repeal Rule 64.1200(a)(3)(iv) and for a Declaratory Ruling to
Interpret Rule 64.1200(a)(3)(iv),
CG Docket Nos. 02-278, 05-338 (filed July 19, 2013) (Staples Petition); Petition
for Declaratory Ruling and/or Waiver of Gilead Sciences, Inc., and Gilead Palo Alto, Inc., Regarding Substantial
Compliance with Section 64.1200(a)(4)(iii) of the Commission’s Rules and for Declaratory Ruling Regarding the
Statutory Basis for the Commission’s Opt-Out Notice Rule with Respect to Faxes Sent with the Recipient’s Prior
Express Invitation or Permission
, CG Docket Nos. 02-278, 05-338 (filed Aug. 9, 2013) (Gilead Petition); Petition of
Douglas Paul Walburg and Richie Enterprises, LLC, for Declaratory Ruling to Clarify Scope and/or Statutory Basis
for Rule 64.1200(a)(3)(iv) and/or for Waiver
, CG Docket Nos. 02-278, 05-338 (filed Aug. 19, 2013) (Walburg
Petition); Petition of Futuredontics, Inc. for Declaratory Ruling to Clarify Scope and/or Statutory Basis for Rule
64.1200(a)(3)(iv) and/or for Waiver
, CG Docket Nos. 02-278, 05-338 (filed Oct. 18, 2013) (Futuredontics Petition);
Petition of All Granite & Marble Corp. for Declaratory Ruling to Clarify Scope and/or Statutory Basis for Rule
64.1200(a)(3)(iv) and/or for Waiver
, CG Docket Nos. 02-278, 05-338 (filed Oct. 28, 2013) (All Granite Petition);
Purdue Pharma Petition for Declaratory Ruling Regarding the Statutory Basis for the Commission’s Opt-Out
Notice Rule with Respect to Solicited Faxes ,and/or Regarding Substantial Compliance with Section
64.1200(a)(4)(iii) and (iv) of the Commission’s Rules
, CG Docket Nos. 02-278, 05-338 (filed Dec. 12, 2013)
(Purdue Pharma Petition); Petition of Prime Health Services, Inc. for Declaratory Ruling to Clarify Scope and/or
Statutory Basis for Rule 64.1200(a)(3)(iv) and/or for Waiver
, CG Docket Nos. 02-278, 05-338 (filed Dec. 17, 2013)
(Prime Health Petition); Petition of TechHealth, Inc. for Declaratory Ruling to Clarify Scope and/or Statutory Basis
for Rule 64.1200(a)(3)(iv) and/or for Waiver
, CG Docket Nos. 02-278, 05-338 (filed Jan. 6, 2013) (TechHealth
Petition); see also 47 C.F.R. § 64.1200(a)(4)(iv). We note that the numbering of the opt-out notice rule has recently
been changed and petitioners referencing section 64.1200(a)(3)(iv) appear to mean current section 64.1200(a)(4)(iv).
We thus find good cause to treat the petition as such.

All the petitioners request a declaratory ruling that the Commission lacked the statutory authority
to adopt the rule or, alternatively, that section 227 of the Communications Act of 1934, as amended, was
not the rule’s statutory basis. We seek comment on these requests.
In addition, All Granite, Forest, Futuredontics, Gilead, Walburg, Purdue Pharma, Prime Health,
and TechHealth seek retroactive waivers of the rule.2 Forest and Gilead state that a waiver “would serve
the public interest by avoiding an abuse of the private right of action created by the TCPA.”3 Walburg
states that a waiver is justified because strict compliance with respect to solicited faxes would be
“inequitable, unduly burdensome, and contrary to the public interest.”4 Purdue Pharma seeks a “limited
waiver” for faxes “sent pursuant to the recipients’ prior express invitation or permission … each of which
included a demonstrably effective opt-out notice on the first page describing cost-free opt-out
mechanisms.”5 Prime Health maintains that “[w]here, as here, recipients of fax advertisements explicitly
agreed to receive them, had the means and ability to revoke their consent at any time, and never expressed
any interest or desire to do so, requiring strict compliance with Section 64.1 200(a)(3)(iv) would be both
tremendously burdensome and inequitable.”6 TechHealth similarly states that it “sent fax advertisements
to business partners that had consented to receiving communications from TechHealth” and that “those
recipients knew how to reach TechHealth and could have easily requested that TechHealth stop sending
faxes. … Under such circumstances, the goal of allowing consumers to stop unwanted faxes would not
have been furthered by including opt-out notices on the faxes…”7 We seek comment on whether these
individual waiver requests should be granted and whether, alternatively, a broader waiver should be
granted to all affected parties and, if so, on what basis.
Finally, Staples requests that the Commission initiate a rulemaking to repeal section
64.1200(a)(3)(iv), arguing that it reflects “poor policy that unfairly threatens companies and individuals
with massive liability for the transmission of solicited fax ads” and “plainly exceeds the agency’s
statutory authority.”8 In addition, Staples argues that application of this requirement violates the First
Amendment to the extent that it requires solicited faxes to contain an opt-out notice.9 In particular,
Staples contends that the Commission failed to identify a governmental interest advanced by the rule,
explain how the rule advances those interests, and provide a reason why a less restrictive rule would not

2 See All Granite Petition at 10; Forest Petition at 11; Futuredontics Petition at 13-14; Gilead Petition at 11; Walburg
Petition at 13-15; Purdue Pharma Petition at 17-19; Prime Health Petition at 13-15; TechHealth Petition at 15-16.
3 See Forest Petition at 11; Gilead Petition at 11.
4 Walburg Petition at 14.
5 Purdue Pharma Petition at 18.
6 Prime Health Petition at 14-15.
7 TechHealth Petition at 16.
8 Staples Petition at 7-10. In addition, the Staples Petition includes a discussion as to why Staples believes litigants
in a civil action can challenge the substantive validity of the Commission rules as a defense to a TCPA lawsuit. This
discussion, however, does not request any specific Commission action, and therefore we do not seek comment on
that issue. Id. at 20-26.
9 Id. at 11-15.
2

have sufficed.10 Separately, Purdue Pharma asks the Commission to confirm that “substantially
compliant” opt-out notices satisfy the Commission’s rules.11 We seek comment on these requests.
Pursuant to sections 1.415 and 1.419 of the Commission’s rules, 47 CFR §§ 1.415, 1.419,
interested parties may file comments and reply comments on or before the dates indicated on the first
page of this document. Comments may be filed using the Commission’s Electronic Comment Filing
System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).
 Electronic Filers: Comments may be filed electronically using the Internet by accessing
ECFS: http://fjallfoss.fcc.gov/ecfs2/.
 Paper Filers: Parties who choose to file by paper must file an original and one copy of
each filing.
 Filings can be sent by hand or messenger delivery, by commercial overnight courier, or
by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the
Commission’s Secretary, Office of the Secretary, Federal Communications Commission.
 All hand-delivered or messenger-delivered paper filings for the Commission’s Secretary
must be delivered to FCC Headquarters at 445 12th St., SW, Room TW-A325,
Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries
must be held together with rubber bands or fasteners. Any envelopes and boxes must be
disposed of before entering the building.
 Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority
Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
 U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th
Street, SW, Washington DC 20554.
People with Disabilities: To request materials in accessible formats for people with disabilities
(braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the
Consumer and Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).
The proceeding this Notice initiates shall be treated as a “permit-but-disclose” proceeding in
accordance with the Commission’s ex parte rules.12 Persons making ex parte presentations must file a
copy of any written presentation or a memorandum summarizing any oral presentation within two
business days after the presentation (unless a different deadline applicable to the Sunshine period applies).
Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation
must (1) list all persons attending or otherwise participating in the meeting at which the ex parte
presentation was made, and (2) summarize all data presented and arguments made during the
presentation. If the presentation consisted in whole or in part of the presentation of data or arguments
already reflected in the presenter’s written comments, memoranda or other filings in the proceeding, the
presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or
other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be
found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission

10 Id. at 14.
11 Purdue Pharma Petition at 13-17.
12 47 C.F.R. §§ 1.1200 et seq.
3

staff during ex parte meetings are deemed to be written ex parte presentations and must be filed
consistent with rule 1.1206(b). In proceedings governed by rule 1.49(f) or for which the Commission has
made available a method of electronic filing, written ex parte presentations and memoranda summarizing
oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment
filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt,
searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission’s ex
parte
rules.

FOR FURTHER INFORMATION CONTACT:

Richard D. Smith, Consumer and Governmental
Affairs Bureau, Federal Communications Commission, (717) 338-2797 or Richard.Smith@fcc.gov.
-FCC-
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