Last week, the D.C. Circuit overturned the Federal Communications Commission's requirement that fax advertisements always include opt-out notices. In Yaakov v. FCC, the court held that the FCC lacks authority under the Telephone Consumer Protection Act (TCPA) to regulate communications sent with the recipient's prior express invitation or permission. The TCPA expressly authorizes the FCC to issue rules regulating unsolicited fax advertisements—and requires that those faxes contain an opt-out notice—but makes no mention of solicited faxes. The D.C. Circuit thus held that the FCC's regulation exceeded the scope of the agency's authority to regulate solicited fax communications.

This decision eases the regulatory burden associated with faxes and has a significant impact on health care companies' and other industries' fax communications, where providers and manufacturers rely on faxes to comply with regulatory obligations. The Consumer Financial Services Group at Bass, Berry & Sims previously published an alert on oral argument in Yaakov v. FCC, which provides more information on the issues in this case.