[Federal Register Volume 84, Number 54 (Wednesday, March 20, 2019)]
[Rules and Regulations]
[Pages 10266-10267]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-05276]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CG Docket Nos. 02-278, 05-338; DA 18-1159]


Rules and Regulations Implementing the Telephone Consumer 
Protection Act of 1991: Regarding the Commission's Opt-Out Notice 
Requirement for Faxes Sent With the Recipient's Prior Express 
Permission

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Commission, via the Consumer and 
Governmental Affairs Bureau (CGB or Bureau), amends its rules by 
eliminating the rule that requires an opt-out notice on fax 
advertisements sent with the recipient's prior express permission or 
consent. This rule was declared unlawful by the United States Court of 
Appeals for the D.C. Circuit and therefore its elimination is warranted 
to ensure uniform and consistent application of the rules.

DATES: Effective March 20, 2019.

FOR FURTHER INFORMATION CONTACT: Rebecca A. Hirselj, Consumer Policy 
Division, CGB, at (202) 418-7603, email: [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order 
(Order), in CG Docket Nos. 02-278, 05-338; DA 18-1159, adopted on 
November 14, 2018 and released on November 14, 2018. The full text of 
the Order is available for public inspection and copying via ECFS, and 
during regular business hours at the FCC Reference Information Center, 
Portals II, 445 12th Street SW, Room CY-A257, Washington, DC 20554. The 
full text of the Order and any subsequently filed documents in this 
matter may also be found by searching ECFS at: http://apps.fcc.gov/ecfs/ (insert CG Docket Nos. 02-278 and/or 05-338 into the Proceeding 
block). To request materials in accessible formats for people with 
disabilities (Braille, large print, electronic files, audio format), 
send an email to [email protected] or call CGB at (202) 418-0530 (voice), 
(202) 418-0432 (TTY) or (844) 432-2275 (videophone).

Final Paperwork Reduction Act of 1995 Analysis

    The Order does not contain any new or modified information 
collection requirements subject to the Paperwork Reduction Act of 1995, 
Public Law 104-13. In addition, therefore, it does not contain any new 
or modified information collection burden for small business concerns 
with fewer than 25 employees, pursuant to the Small Business Paperwork 
Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

Congressional Review Act

    The Commission sent a copy of Order to Congress and the Government 
Accountability Office pursuant to the Congressional Review Act, see 5 
U.S.C. 801(a)(1)(A).

Synopsis

    1. In the Order, the Bureau eliminates the Commission's 2006 
Solicited Fax Rule requiring opt-out notices on faxes sent with the 
recipients' prior permission or consent. This action is taken in 
response to the decision of the United States Court of Appeals for the 
D.C. Circuit finding that the rule is unlawful to the extent that it 
requires opt out notices on solicited faxes. The Bureau also dismissed 
as moot ten pending petitions for retroactive waiver of the rule and 
two petitions for reconsideration of orders enforcing the rule.
    2. In 1991, Congress enacted the Telephone Consumer Protection Act 
(TCPA). In relevant part, the TCPA prohibits the use of any telephone 
facsimile (fax) machine, computer, or other device to send an 
unsolicited advertisement to a telephone fax machine. In 1992, the 
Commission adopted rules implementing the TCPA, including restrictions 
on the transmission of unsolicited fax ads.
    3. In 2005, Congress enacted the Junk Fax Prevention Act, which 
amended the fax advertising provisions of the TCPA. Among other things, 
the law required the sender of an unsolicited fax ad to provide 
specified notice and contact information on the fax that allows 
recipients to opt out of any future fax transmission from the sender 
and specified the circumstances under which a request to opt out 
complies with the Act.
    4. In 2006, the Commission adopted the Junk Fax Order, published at 
71 FR 25967, May 3, 2006, amending the rules concerning fax 
transmissions as required by the Junk Fax Prevention Act. As part of 
the Junk Fax Order, the Commission adopted the 2006 Solicited Fax Rule 
requiring that fax advertisements sent to a recipient that has provided 
prior express invitation or permission to the sender must include an 
opt-out notice.

Discussion

    5. The Bureau eliminates the Commission's 2006 rule requiring opt-
out notices on fax advertisements sent with the recipient's prior 
express permission or consent. Specifically, in light of the court's 
decision that the rule is unlawful, Sec.  64.1200(a)(4)(iv) of the 
Commission's rules is eliminated from Title 47 of the Code of Federal 
Regulations. The Bureau finds good cause to eliminate the rule without 
notice and comment because the rule has been vacated by the court in an 
order that has become final and nonreviewable. As such, seeking notice 
and comment before implementing the court's non-discretionary mandate 
would serve no purpose and is thus contrary to the public interest.

[[Page 10267]]

    6. The Bureau also dismisses as moot ten pending petitions for 
retroactive waiver as well as the two pending petitions for 
reconsideration. The Court of Appeals for the D.C. Circuit declared 
unlawful and vacated the 2006 Solicited Fax Rule and the Bureau 
accordingly eliminated the rule as described above. Therefore, the 
Bureau finds no need to consider the remaining pending petitions 
seeking temporary waiver of the rule or seeking reconsideration of the 
Commission's application of the rule.

Ordering Clauses

    7. Pursuant to sections 4(i), 4(j), and 227 of the Communications 
Act of 1934, as amended, 47 U.S.C. 154(i), (j), 227, and the authority 
delegated in Sec. Sec.  0.141 and 0.361 of the Commission's rules, 47 
CFR 0.141, 0.361, that the Order is adopted and that Sec.  64.1200 of 
the Commission's rules, 47 CFR 64.1200 is amended.
    8. Pursuant to sections 4(i), 4(j), and 227 of the Communications 
Act of 1934, as amended, 47 U.S.C. 154(i), (j), and 227, and Sec.  1.3 
off the Commission's rules, 47 CFR 1.3, and the authority delegated in 
Sec. Sec.  0.141 and 0.361 of the Commission's rules, 47 CFR 0.141, 
0.361, that the petitions for retroactive waiver of Sec.  
64.1200(a)(4)(iv) of the Commission's rules, 47 CFR 64.1200(a)(4)iv), 
filed by Safemark Systems, LP, Cynosure, Inc., United Auto Credit 
Corporation, Brigadoon Fitness Inc. and Brigadoon Financial Inc., Renue 
Systems Development Corp., Inc., et al., Chester Limited, Inc., Foot 
Levelers, Inc., M3 USA Corporation, Lane Labs-USA, Inc, and Getaway 
Seminars, Inc. are dismissed as moot.
    9. Pursuant to sections 4(i), 4(j), and 227 of the Communications 
Act of 1934, as amended, 47 U.S.C. 154(i), (j), and 227, and Sec.  1.3 
of the Commission's rules, 47 CFR 1.3, and the authority delegated in 
Sec.  Sec.  0.141 and 0.361 of the rules, 47 CFR 0.141, 0.361, that the 
petitions for reconsideration filed by Fetch, Inc., d/b/a Petplan and 
Ohio National Mutual, Inc., are dismissed as moot.
    10. CGB's Reference Information Center, shall send a copy of the 
Order, including the Regulatory Flexibility Analysis, to the Chief 
Counsel for Advocacy of the Small Business Administration.

List of Subjects in 47 CFR Part 64

    Telecommunications, Telephone, Facsimile.

Federal Communications Commission.
Daniel Margolis,
Acting Legal Advisor, Consumer & Governmental Affairs Bureau.

Final Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR part 64 as follows:

PART 64--MISCELLANEOUS RULES RELATING TO COMMON CARRIERS

0
1. The authority citation for part 64 continues to read as follows:

    Authority:  47 U.S.C. 154, 201, 202, 217, 218, 220, 222, 225, 
226, 227, 228, 251(a), 251(e), 254(k), 262, 403(b)(2)(B), (c), 616, 
620, 1401-1473, unless otherwise noted.


Sec.  64.1200   [Amended]

0
2. In Sec.  64.1200:
0
a. Remove paragraphs (a)(4)(iv); and
0
b. Redesignate paragraphs (a)(4)(v), (vi), and (vii) as paragraphs 
(a)(4)(iv), (v), and (vi), respectively.

[FR Doc. 2019-05276 Filed 3-19-19; 8:45 am]
 BILLING CODE 6712-01-P