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Controlled Chaos?: FCC Withdraws Overruled Portion of Solicited Fax Rule One Day After Supreme Court Accepts Review of Different Portion of Same Rule

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The TCPA jockeying continues at the FCC.

As we reported on Tuesday, the U.S. Supreme Court has just granted cert to determine whether or not the FCC’s definition of  “unsolicited advertisement” in its 2006 Junk Fax Ruling is binding on district courts pursuant to the Hobbs Act. The outcome of that determination will have a huge impact on TCPAland–imagine if the Court finds that FCC rulings are not, and never were, binding????– and may also alter the court/agency power paradigm forever if the Court also takes up the related question of  Chevron deference.

In what may have been unfortunate timing–or a deliberate response to the Supreme Court’s granting of cert.– the FCC issued an order yesterday withdrawing a different component of that same 2006 Junk Fax ruling. In an order Adopted and Released yesterday, the FCC specifically withdrew that portion of the Junk Fax ruling mandating that opt out language appear on solicited faxes. That Order can be found here: FCC Order on Junk Faxes

The background on the FCC’s withdrawal of its solicited fax opt-out rule mirrors the current saga related to ACA Int’l so it is a useful study even for those that do not send faxes. Here’s what happened: in a case called Bias Yaakov of Spring Valley, et al. v. FCC, 852 F.3d 1078, 1083 (D.C. Cir. 2017), the D.C. Circuit Court of Appeal found that the FCC lacked the power to issue rulings purporting to dictate the content of solicited (as opposed to unsolicited) faxes. Thus it (the Court of Appeal) struck down that portion of the FCC’s 2006 Junk Fax ruling as invalid rulemaking. Nonetheless the FCC’s regulations technically remained on the books as part of 47 CFR 64.1200(a)(4). That could be confusing if you don’t, you know, read TCPAland.

In any event, with the Bias Yaakov decision decided, the FCC has now (over a year later) elected to clean up the regulations by issuing a former order withdrawing the superseded portion of the 2006 Junk Fax rule. This was probably not done to mess with the Supreme Court in of its grant of certiori in PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., No. 17-1705, 2018 WL 3127423 (U.S. Nov. 13, 2018), but again the timing is very interesting.

*insert gif of Czar stroking goatee here*

So what does this mean for the FCC’s ongoing TCPA Public Notice proceeding following ACA Int’l? Well, just like in Bias Yaakov, the D.C. Circuit also struck down portions of an FCC order— the 2015 TCPA Omnibus Order–in ACA Int’l. It is possible (perhaps likely?) then that the FCC also issues a ruling formally withdrawing those portions of the Omnibus that were struck down by the D.C. Circuit Court of Appeal. Unlike the 2006 Junk Fax ruling, however, the FCC issued a Public Notice seeking much input from the folks in TCPAland so we expect a much broader ruling following ACA Int’l

What exactly that ruling will look like, and whether or not that ruling will be binding in the Ninth Circuit–or at all--are now all open questions following the events of the last few months. Isn’t TCPAland amazing?

BTW– did we mention that Bias Yaakov was written by some judge named Kavanaugh?

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