February 22, 2018

Justin Kay Discusses Fax Opt-Out Notices for Legal NewsLine

Chicago partner Justin Kay spoke with Legal NewsLine about Bais Yaakov of Spring Valley v. FCC, 852 F.3d 1078 (D.C. Cir. 2017)—the D.C. Circuit decision that held that the FCC does not have the authority to require opt-out notices on solicited fax advertisements—and the petition for certiorari seeking Supreme Court review of that decision.

Justin provided background on the case, starting with the FCC’s 2006 Order purporting to require opt-out language on solicited fax advertisements and the impact it had on the legal landscape: “Plaintiffs’ attorneys seized on this and began filing lawsuits claiming that even though their clients specifically requested faxes, they were entitled to damages of $500 to $1,500 per fax because those faxes did not include the specific opt-out language.”

Justin noted the profound impact of the D.C. Circuit’s decision eliminating the opt-out notice requirement for solicited fax advertisements (calling it a “case-killer”) and correctly predicted that the Supreme Court would not hear the matter, explaining that “the reasons typically justifying Supreme Court review are just not present,” including the fact that “the FCC no longer supports the plaintiffs’ interpretation.”

Read “To Plaintiffs' Dismay, SCOTUS Likely Won't Review 'Case-Killer' TCPA Decision.”

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