Emerging Issues in FCC: Legal Issues in TCPA Declaratory Rulings on Faxes

Over the past several decades, Congress has spoken twice regarding the regulation of faxes: the Telephone Consumer Protection Act of 1991 (TCPA), and the Junk Fax Prevention Act of 2005 (JFPA). The Federal Communications Commission (FCC) is responsible for implementing those laws, and has done so by enacting extensive regulations and issuing numerous Declaratory Rulings and Orders. Those Declaratory Rulings and Orders provide gloss on the TCPA and JFPA found nowhere else and create compliance traps for the unwary. With the threat of $500-$1500 in statutory damages per violation (i.e., per fax), the costs of non-compliance can be staggering.

Panelists discussed the fundamentals of the TCPA and JFPA, the FCC’s interpretations of those laws through its regulations and orders, and recent challenges (both before the FCC and in federal court) to those interpretations. Speakers also presented their perspectives on how best to comply with the FCC’s regulations to help minimize the risk of liability. Topics included:

• An overview of the TCPA and JFPA
• Key compliance points: Is the fax “unsolicited” and is it an “advertisement”?
• The FCC’s opt-out notice regulations, rulings, and pending appeals
• The FCC’s “Westfax” Declaratory Ruling extending the TCPA to efaxes
• Best practices to minimize the risk of a lawsuit
• Strategies for litigating after suit has been filed