CGB Seeks Comments Concerning FCC Rule Opt-Out Notices On Fax Adv
Federal Communications Commission
News Media Information 202 / 418-0500
445 12th St., S.W.
Washington, D.C. 20554
August 29, 2014
CONSUMER AND GOVERNMENTAL AFFAIRS BUREAU SEEKS COMMENT ON PETITION
CONCERNING THE COMMISSION’S RULE ON OPT-OUT NOTICES ON FAX
CG Docket No. 02-278
CG Docket No. 05-338
Comment Date: September 12, 2014
Reply Comment Date: September 19, 2014
On August 20, 2014, Unique Vacations, Inc. (Petitioner) filed a petition seeking a declaratory
ruling and/or waiver concerning section 64.1200(a)(4)(iv) of the Commission’s rules, which requires fax
ads 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 the Petition as described below.
The Petitioner contends that section 64.1200(a)(4)(iv) should not apply to faxes sent with the
“prior express invitation or permission” of the recipient because the Commission lacks authority to
regulate “solicited” faxes.2 The Petitioner seeks a declaratory ruling that a fax sent pursuant to the
recipient’s prior express invitation or permission complies substantially with the rule if it provides
instructions on the first page explaining how to opt out of future faxes, “even if the opt out notice does not
conform verbatim with the letter of the rule defining the opt out notice required for unsolicited faxes.”3
Alternatively, the Petitioner requests that the Commission clarify that the opt-out notice requirements
imposed on solicited faxes were not promulgated under section 227(b) of the Communications Act, as
The Petitioner also alleges confusion was created regarding the applicability of the rule by
1 See Petition of Unique Vacations, Inc. for Declaratory Ruling and/or Waiver, CG Docket Nos. 02-278, 05-338
(filed August 20, 2014) (Petition); see also 47 C.F.R. § 64.1200 (a)(4)(iv).
2 Petition at 7.
3 Id. at 8.
4 Id. at 12-16.
language contained in a footnote to the 2006 Order.5 In addition, the Petitioner argues that regulation of
solicited faxes raises First Amendment concerns.6
Should the Commission decline the request for declaratory ruling, the Petitioner seeks a
retroactive waiver of the opt-out notice requirement for fax ads sent where prior express invitation or
permission has been obtained from the recipient.7
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
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 email@example.com 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).
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
5 Id. at 13.
7 Id. at 9-11 (contending “[i]t does not serve the public interest, the TCPA’s statutory purpose, nor the interests of
justice to impose potentially staggering aggregated statutory damages on the basis of alleged violations of minor
technical requirements, which Congress never intended to apply to solicited faxes”).
8 47 C.F.R. §§ 1.1200 et seq.
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
FOR FURTHER INFORMATION CONTACT: Richard D. Smith, Consumer and Governmental
Affairs Bureau, Federal Communications Commission, (717) 338-2797; or Richard.Smith@fcc.gov.
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