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CGB Seeks Comment On Petitions Concerning Rule On Fax Opt-Out Notices

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Released: May 30, 2014


Federal Communications Commission

News Media Information 202 / 418-0500


TTY: 1-888-835-5322

445 12th St., S.W.

Washington, D.C. 20554

DA 14-734

May 30, 2014




CG Docket No. 02-278

CG Docket No. 05-338

Comment Date: June 13, 2014

Reply Comment Date: June 20, 2014

Two petitions have recently been filed seeking a declaratory ruling 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.

The petitioners seek a declaratory ruling clarifying that section 64.1200(a)(4)(iv) of the

Commission’s rules does not apply to fax advertisements sent with the prior express permission of the

recipient because such faxes constitute “solicited” faxes that they argue cannot be required to include opt-

out notices.2 Alternatively, the petitioners request that the Commission clarify that the statutory basis for

this rule is not section 227 of the Communications Act, as amended.3 Should the Commission decline

these requests for declaratory ruling, the petitioners seek a retroactive waiver for fax advertisements sent

where prior express consent has been obtained from the recipient.4

In support of this request, petitioner

S&S argues that a retroactive waiver is justified “because the rule that requires an opt-out notice on

solicited advertisements is an invalid rule.”5

Cannon contends that requiring strict compliance would

1 See Petition of S&S Firestone, Inc., d/b/a S&S Tire for Declaratory Ruling and/or Waiver, CG Docket Nos. 02-

278, 05-338 (filed May 7, 2014) (S&S Petition); Petition of Cannon & Associates LLC D/B/A Polaris Group for

Declaratory Ruling and/or Waiver, CG Docket Nos. 02-278, 05-338 (filed May 15, 2014) (Cannon Petition); see

also 47 C.F.R. § 64.1200(a)(4)(iv).

2 See S&S Petition at 9; Cannon Petition at 6-8 (alternatively arguing that the Commission should clarify that the

opt-out notice requirements are satisfied when the fax includes an opt-out notice that substantially complies with the

rule). Id. at 9-11.

3 S&S Petition at 9; Cannon Petition at 11-12.

4 S&S Petition at 10-11; Cannon Petition at 12-13.

5 S&S Petition at 10 (suggesting that the damages sought “will likely mean that S&S is out of business”).


“unduly subject businesses to devastating class action lawsuits merely as a result of sending consenting

recipients faxes that included on their front page an opt-out notice that substantially complies with the

requirements under 64.1200(a)(4)(iii).”6

We note that the Commission has recently sought comment on several related petitions that raise

issues similar to those set forth in these Petitions.7

As a result, commenters need not refile comments

already submitted in response to those prior Public Notices for consideration in this matter.

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


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 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.8 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).

6 See Cannon Petition at 13.

7 See Consumer and Governmental Affairs Bureau Seeks Comment on Petitions Concerning the Commission’s Rule

on Opt-Out Notices on Fax Advertisements, CG Docket Nos. 02-278, 05-338, Public Notice, DA 14-120 (rel. Jan.

31, 2014); Consumer and Governmental Affairs Bureau Seeks Comment on Crown Mortgage Company Petition

Concerning the Commission’s Rule on Opt-Out Notices on Fax Advertisements, CG Docket Nos 02-278, 05-338,

Public Notice, DA 14-416 (rel. Mar. 28, 2014); Consumer and Governmental Affairs Bureau Seeks Comment on

Petitions Concerning the Commission’s Rule on Opt-Out Notices on Fax Advertisements, CG Docket Nos. 02-278,

05-338, DA 14-556 (rel. Apr. 25, 2014).

8 47 C.F.R. §§ 1.1200 et seq.


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

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


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