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CGB Seeks Comments Concerning FCC Rule Opt-Out Notices On Fax Adv

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Released: August 29, 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 14-1259

August 29, 2014




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

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).

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

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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