United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 8, 2016 Decided March 31, 2017
No. 14-1234
BAIS YAAKOV OF SPRING VALLEY, ET AL.,
PETITIONERS
v.
FEDERAL COMMUNICATIONS COMMISSION AND UNITED
STATES OF AMERICA,
RESPONDENTS
QUILL CORPORATION, ET AL.,
INTERVENORS
Consolidated with 14-1235, 14-1239, 14-1243, 14-1270,
14-1279, 14-1292, 14-1293, 14-1294, 14-1295, 14-1297,
14-1299, 14-1302
On Petitions for Review of an Order of
the Federal Communications Commission
Matthew A. Brill argued the cause for Class Action
Defendant Petitioners. With him on the briefs were Matthew
T. Murchison, Jonathan Y. Ellis, Samuel L. Feder, Matthew E.
Price, Robert A. Long, Yaron Dori, Michael Beder, Marie
Tomassi, Joseph R. Palmore, Thomas R. McCarthy, Helgi C.
2
Walker, Kim E. Rinehart, Jeffrey R. Babbin, Blaine C. Kimrey,
and Bryan K. Clark.
Megan L. Brown and Brett A. Shumate were on the brief
for amici curiae National Federation of Independent Business
Small Business Legal Center and Consumers’ Research in
support of the Class Action Defendant Petitioners. Karen R.
Harned entered an appearance.
Aytan Y. Bellin argued the cause for Waiver Petitioners
Bais Yaakov of Spring Valley, et al. With him on the briefs
were Roger Furman, Phillip A. Bock, and Glenn L. Hara.
David M. Oppenheim entered an appearance.
Allison M. Zieve and Scott L. Nelson were on the brief for
amicus curiae Public Citizen, Inc. in support of the Waiver
Petitioners.
Matthew J. Dunne, Counsel, Federal Communications
Commission, argued the cause for respondent. With him on
the brief were William J. Baer, Assistant Attorney General,
U.S. Department of Justice, Robert B. Nicholson and Steven J.
Mintz, Attorneys, Jonathan B. Sallet, General Counsel, Federal
Communications Commission, David M. Gossett, Deputy
General Counsel, and Jacob M. Lewis, Associate General
Counsel. Kristen C. Limarzi, Attorney, U.S. Department of
Justice, and Richard K. Welch, Deputy Associate General
Counsel, Federal Communications Commission, entered
appearances.
Aytan Y. Bellin argued the cause for intervenors Bais
Yaakov of Spring Valley, et al. in support of the respondent on
the statutory authority issue. With him on the brief were
Roger Furman, Phillip A. Bock, and Glenn L. Hara.
3
Robert A. Long argued the cause for intervenors in support
of the respondent on the waiver issue. With him on the brief
were Yaron Dori, Michael Beder, Matthew A. Brill, Matthew
T. Murchison, Jonathan Y. Ellis, Marie Tomassi, Joseph R.
Palmore, Blaine C. Kimrey, Bryan K. Clark, Samuel L. Feder,
Matthew E. Price, Thomas R. McCarthy, Helgi C. Walker, Kim
E. Rinehart, and Jeffrey R. Babbin.
Before: KAVANAUGH and PILLARD, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge KAVANAUGH,
with whom Senior Circuit Judge RANDOLPH joins.
Dissenting opinion filed by Circuit Judge PILLARD.
KAVANAUGH, Circuit Judge: Believe it or not, the fax
machine is not yet extinct. Some businesses send unsolicited
advertisements by fax. This case arises out of Congress’s
efforts to protect consumers from unsolicited fax
advertisements.
The Junk Fax Prevention Act of 2005 bans most
unsolicited fax advertisements, but allows unsolicited fax
advertisements in certain commercial circumstances. When
those unsolicited fax advertisements are allowed, the Act
requires businesses to include opt-out notices on the faxes.
See 47 U.S.C. § 227(b).
In 2006, the FCC issued a rule that requires businesses to
include opt-out notices not just on unsolicited fax
advertisements, but also on solicited fax advertisements. The
term “solicited” is a term of art for faxes sent by businesses
with the invitation or permission of the recipient.
4
In this case, businesses that send solicited fax
advertisements contend that the FCC’s new rule exceeds the
FCC’s authority under the Act. The question is whether the
Act’s requirement that businesses include an opt-out notice on
unsolicited fax advertisements authorizes the FCC to require
businesses to include an opt-out notice on solicited fax
advertisements. Based on the text of the statute, the answer is
no.
We hold that the FCC’s 2006 Solicited Fax Rule is
therefore unlawful to the extent that it requires opt-out notices
on solicited faxes. The FCC’s Order in this case interpreted
and applied that 2006 Rule. We vacate that Order and remand
for further proceedings.
I
In 1991, Congress passed and President George H.W.
Bush signed the Telephone Consumer Protection Act. See
Pub. L. No. 102-243, 105 Stat. 2394 (codified as amended at
47 U.S.C. § 227). In 2005, Congress passed and President
George W. Bush signed the Junk Fax Prevention Act, which
amended the 1991 Act. See Pub. L. No. 109-21, 119 Stat. 359
(codified at 47 U.S.C. § 227). For simplicity, we will refer to
the combined and amended legislation as “the Act.”
The Act generally prohibits the use of “any telephone
facsimile machine, computer, or other device to send, to a
telephone facsimile machine, an unsolicited advertisement.”
47 U.S.C. § 227(b)(1)(C). The Act defines “unsolicited
advertisement” as “any material advertising the commercial
availability or quality of any property, goods, or services which
is transmitted to any person without that person’s prior express
invitation or permission, in writing or otherwise.” Id.
§ 227(a)(5) (emphasis added).
5
The Act contains an exception that allows certain
unsolicited fax advertisements. The statute permits
unsolicited fax advertisements where (1) “the unsolicited
advertisement is from a sender with an established business
relationship with the recipient”; (2) the sender obtained the
recipient’s fax number through “voluntary communication”
with the recipient or “the recipient voluntarily agreed to make”
his information available in “a directory, advertisement, or site
on the Internet”; and (3) the unsolicited advertisement
“contains a notice meeting the requirements under paragraph
(2)(D).” Id. § 227(b)(1)(C)(i)-(iii). Paragraph (2)(D), in
turn, provides, among other things, that the notice must be
“clear and conspicuous” and “on the first page of the
unsolicited advertisement,” must state that the recipient may
opt out from “future unsolicited advertisements,” and must
include a “cost-free mechanism” to send an opt-out request “to
the sender of the unsolicited advertisement.” Id.
§ 227(b)(2)(D).
That third requirement – the opt-out notice – is central to
this case.
Congress has authorized the FCC to issue regulations to
implement the Act. See id. § 227(b)(2). Fax senders face a
stiff penalty for violating the FCC’s regulations. Importantly,
the Act supplies a private right of action to fax recipients for
them to sue fax senders that send unsolicited fax
advertisements in violation of FCC regulations. See id.
§ 227(b)(3). The Act allows plaintiffs to obtain from fax
senders at least $500 for each violation. See id. Those
penalties can add up quickly given the nature of mass business
faxing.
In 2006, the FCC issued a new rule governing solicited
6
faxes. See Rules and Regulations Implementing the
Telephone Consumer Protection Act of 1991; Junk Fax
Prevention Act of 2005, 71 Fed. Reg. 25,967, 25,971-72 (May
3, 2006) (now codified at 47 C.F.R. § 64.1200(a)(4)(iv)). We
will refer to that rule as the Solicited Fax Rule. The Solicited
Fax Rule requires a sender of a fax advertisement to include an
opt-out notice on the advertisement, even when the
advertisement is sent to a recipient from whom the sender
“obtained permission.” 71 Fed. Reg. at 25,972. In other
words, the FCC’s new rule mandates that senders of solicited
faxes comply with a statutory requirement that applies only to
senders of unsolicited faxes.
Petitioner Anda is a company that sells generic drugs. As
part of its business, Anda faxes advertisements to small
pharmacies. Anda’s fax advertisements convey pricing
information and weekly specials to the pharmacies. Many
pharmacies have given permission to Anda for Anda to send
those faxes.
In 2010, Anda sought a declaratory ruling from the FCC
clarifying that the Act does not require an opt-out notice on
solicited fax advertisements – that is, those that are sent with
the recipient’s prior express permission. See Anda Petition
for Declaratory Ruling, CG Docket No. 05-338 (Nov. 30,
2010).
That issue was of great importance to Anda. In 2008,
Anda had been sued in a class action in Missouri state court for
alleged violations of the FCC’s Solicited Fax Rule. Many of
the plaintiff pharmacies in that case admitted that they had
expressly given permission to Anda for Anda to send fax
advertisements to the plaintiffs. But those plaintiffs
nevertheless sought over $150 million in damages from Anda
because Anda’s fax advertisements allegedly did not include
7
opt-out notices that complied with the Solicited Fax Rule’s
requirements.
Let that soak in for a minute: Anda was potentially on
the hook for $150 million for failing to include opt-out notices
on faxes that the recipients had given Anda permission to send.
If the Act actually provides the FCC with the authority to issue
the Solicited Fax Rule, then Anda could be subject to that large
class-action damage award. But if the Act does not provide
the FCC with the authority to issue the Solicited Fax Rule, then
Anda would be off that hook. Several other businesses facing
similar class-action lawsuits joined Anda’s petition to the FCC.
In response to Anda’s petition, the FCC adhered to its
interpretation of the Act as providing the FCC with the
authority to require opt-out notices on solicited faxes as well as
unsolicited faxes (although the FCC said it would waive
application of the rule to businesses that sent solicited faxes
before April 30, 2015). See Order, Petitions for Declaratory
Ruling, Waiver, and/or Rulemaking Regarding the
Commission’s Opt-Out Requirement for Faxes Sent with the
Recipient’s Prior Express Permission, 29 FCC Rcd. 13,998
(2014). Commissioner Pai and Commissioner O’Rielly
dissented in relevant part. Commissioner Pai stated that the
FCC’s statutory approach reflected “convoluted gymnastics.”
Id. at 14,018 (Pai, concurring in part and dissenting in part).
Anda and the other companies then filed a petition for review
in this Court. This Court has jurisdiction over the petition
under 47 U.S.C. § 402(a) and 28 U.S.C. § 2342(1).
II
The FCC says that the Act’s requirement that businesses
include opt-out notices on unsolicited fax advertisements
grants the FCC the authority to also require businesses to
8
include opt-out notices on solicited fax advertisements – that
is, those fax advertisements sent with the permission of the
recipient. We disagree with the FCC.
The relevant provision of the Act provides: “It shall be
unlawful for any person within the United States . . . to use any
telephone facsimile machine, computer, or other device to
send, to a telephone facsimile machine, an unsolicited
advertisement.” 47 U.S.C. § 227(b) (emphasis added). The
Act defines “unsolicited advertisement” as “any material
advertising the commercial availability or quality of any
property, goods, or services which is transmitted to any person
without that person’s prior express invitation or permission, in
writing or otherwise.” Id. § 227(a)(5) (emphasis added).
Pursuant to regulation, a fax recipient may revoke previously
granted permission by sending a request to the sender. See 47
C.F.R. § 64.1200(a)(4)(vi).
The Act contains an exception that allows certain
unsolicited fax advertisements. As relevant here, the Act
allows a business to transmit an unsolicited fax advertisement
when, among other things, the fax “contains a notice” that the
recipient may opt out from “future unsolicited advertisements.”
Id. § 227(b)(1)(C), (b)(2)(D).
Although the Act requires an opt-out notice on unsolicited
fax advertisements, the Act does not require a similar opt-out
notice on solicited fax advertisements – that is, those fax
advertisements sent with the recipient’s prior express invitation
or permission. Nor does the Act grant the FCC authority to
require opt-out notices on solicited fax advertisements.
The text of the Act provides a clear answer to the question
presented in this case. See Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 842-43 & n.9
9
(1984). Congress drew a line in the text of the statute between
unsolicited fax advertisements and solicited fax
advertisements. Unsolicited fax advertisements must include
an opt-out notice. But the Act does not require (or give the
FCC authority to require) opt-out notices on solicited fax
advertisements. It is the Judiciary’s job to respect the line
drawn by Congress, not to redraw it as we might think best. 1
The FCC and the dissent seem to suggest that the agency
may take an action – here, requiring opt-out notices on solicited
fax advertisements – so long as Congress has not prohibited
the agency action in question. That theory has it backwards
as a matter of basic separation of powers and administrative
law. The FCC may only take action that Congress has
authorized. See Utility Air Regulatory Group v. EPA, 134 S.
Ct. 2427, 2445, slip op. at 21 (2014); American Library
Association v. FCC, 406 F.3d 689, 698 (D.C. Cir. 2005).
Congress has not authorized the FCC to require opt-out notices
on solicited fax advertisements. And that is all we need to
know to resolve this case.
In trying to sidestep the statute’s language, the FCC argues
that it can require opt-out notices on solicited faxes because
Congress did not define the phrase “prior express invitation or
permission” in the Act. To reiterate, the Act states that an
“unsolicited advertisement” is “any material advertising the
commercial availability or quality of any property, goods, or
services which is transmitted to any person without that
person’s prior express invitation or permission, in writing or
otherwise.” 47 U.S.C. § 227(a)(5) (emphasis added). The
FCC argues that it has reasonably defined the phrase “prior
1
The precise question here, to be clear, is whether Section 227(b)
authorizes the opt-out notice requirement for solicited fax advertisements.
The FCC has not claimed that any other provision of the Act could authorize
an opt-out notice requirement on solicited fax advertisements.
10
express invitation or permission” to mean that prior express
permission lasts only until it is revoked, and that all fax
advertisements – even solicited fax advertisements – therefore
must include a means to revoke that permission.
If you are finding the FCC’s reasoning on this point
difficult to follow, you are not alone. We do not get it either.
The phrase “prior express invitation or permission” tells us
what it may take for a fax to be considered solicited rather than
unsolicited. The FCC can reasonably define that concept
within statutory boundaries. The FCC can also reasonably
provide, as it has, that a recipient may revoke previously
granted permission by sending a request to the sender. See 47
C.F.R. § 64.1200(a)(4)(vi). But what the FCC may not do
under the statute is require opt-out notices on solicited faxes –
that is, opt-out notices on those faxes that are sent with the prior
express invitation or permission of the recipient.
The FCC responds that giving fax recipients a cost-free,
simple way to withdraw prior permission is good policy. The
agency says that absent a requirement that senders include an
opt-out notice on fax ads sent with prior express permission,
some recipients may have trouble figuring out how to revoke
their permission. But the fact that the agency believes its
Solicited Fax Rule is good policy does not change the statute’s
text. See Central Bank of Denver v. First Interstate Bank of
Denver, 511 U.S. 164, 188 (1994). The text of the Act does
not grant the FCC authority to require opt-out notices on
solicited faxes.
***
We hold that the FCC’s 2006 Solicited Fax Rule is
unlawful to the extent that it requires opt-out notices on
solicited faxes. The FCC’s Order in this case interpreted and
11
applied that 2006 Rule. We vacate that Order and remand for
further proceedings. 2
So ordered.
2
The FCC waived application of the 2006 Solicited Fax Rule to fax
advertisements sent before April 30, 2015. A different set of petitioners
challenged the FCC’s waiver. In light of our decision that the FCC’s
Solicited Fax Rule is unlawful, we dismiss the waiver petitions as moot.
PILLARD, Circuit Judge, dissenting: The court holds that
the FCC’s requirement of opt-out notices on fax ads
contravenes the plain text of the statute. The majority
shortchanges the FCC’s statutory authority to “implement”
Congress’s ban on “unsolicited” fax ads—those sent without
“prior express invitation or permission, in writing or
otherwise.” 47 U.S.C. § 227(b)(2), (b)(1)(C), (a)(5). The FCC
reasonably concluded that opt-out notices are needed on all fax
ads so that recipients can easily limit or withdraw their
“invitation or permission.” Regulation of “unsolicited”
advertising requires a mechanism for discerning whether
someone who okayed fax ads at some point in the past is still
willing to receive an advertiser’s further faxes. The likely
result of the court’s decision is to make it harder for recipients
to control what comes out of their fax machines (and so perhaps
more hesitant to acquiesce to receive fax ads in the first
place)—precisely the sort of anti-consumer harm Congress
intended to prevent.
I.
The majority fails to see the FCC’s rationale for requiring
that all fax ads include an informative opt-out notice. See Maj.
Op. at 10. Anybody who has ever shared contact information
and then suffered a fusillade of annoying and unstoppable
advertisements—whether by phone, text, email, or fax—
recognizes the nature of the problem the FCC was trying to
address. Testing the water is no commitment to an endless
swim; it is a reasonable protection of the hesitant swimmer to
prohibit hiding the life jackets.
The FCC was authorized to give such protection.
Congress directed the FCC to “prescribe regulations to
implement” the prohibition on the sending of fax ads absent the
recipient’s “prior express invitation or permission.” 47 U.S.C.
§ 227(b)(2), (a)(5). Beyond clarifying that the permission need
not be in writing, Congress said nothing about how “prior
express invitation or permission” might be elicited, or when it
2
might lapse or be withdrawn. Does an advertiser need to secure
permission before sending each fax ad to a particular recipient?
Would permission, once given, last forever? Or must an
advertiser provide a spectrum of more nuanced options
between those poles? The statute does not say, and the FCC
reasonably determined that, in part to guard against error or
fraud in identifying who has in fact agreed to accept fax ads,
permission would last only “until the consumer revokes such
permission by sending an opt-out request to the sender.” 21
F.C.C. Rcd. 3787, 3812 (2006).
So far so good; that reasonable statutory interpretation has
not been challenged. But this right to opt-out raised a further
question: If, for permission to be meaningful, recipients must
be able to limit or withdraw it, do advertisers need to make
clear how that may be done? The FCC concluded that they do.
Requiring all fax ads to include information about opting out
would “allow consumers to stop unwanted faxes in the future.”
21 F.C.C. Rcd. at 3812. As the FCC further explained in the
order under review, the failure to provide opt-out notices could
confront fax recipients “with a practical inability to make
senders aware that their consent is revoked.” 29 F.C.C. Rcd.
13998, 14007 (2014). Indeed, the inclusion of an opt-out
notice is part of what makes subsequent faxes “solicited” at all.
See id. at 14007 n.69. The conspicuous presence of a
standardized notice specifying an opt-out mechanism helps to
confirm that those recipients who don’t opt out actually agree
to receive more ads, and are not left fuming and spluttering as
they spend “considerable time and effort to determine how to
properly opt out.” Id. at 14007.
Thus, the FCC’s regulation must be considered in light of
Congress’s charge to the FCC to “prescribe regulations to
implement” a regime that defines the capacious statutory
phrase “prior express invitation or permission.” 47 U.S.C. §
227(b)(2), (a)(5). By promulgating this rule, the FCC sought
3
to “implement”—to make meaningful and effective—its
unchallenged view that “prior express invitation or permission”
encompasses past permission that has not been delimited
despite a reasonable opportunity to do so. See 29 F.C.C. Rcd.
at 14006-07; 21 F.C.C. Rcd. at 3811-12.
The majority misses this because, in its telling, the Junk
Fax Prevention Act’s requirement of an opt-out notice on
unsolicited faxes sent pursuant to an established business
relationship “is central to this case.” Maj. Op. at 5. That
account makes pivotal what is peripheral. The FCC has
authority—pursuant to the general ban on unsolicited faxes and
its mandate to implement that ban—to require an opt-out notice
on all fax ads. The fact that Congress required an opt-out
notice as a condition of treating unsolicited ads faxed to an
established business partner as if they were solicited does not
detract from the FCC’s preexisting authority to require opt-out
notices on other faxed advertisements.
In my view, a different provision of the Junk Fax
Prevention Act is more central to this case: Congress’s
addition of the qualifier “in writing or otherwise” after “prior
express invitation or permission.” See Pub. L. No. 109-21, §
2(g), 119 Stat. 359 (2005). In rulemaking to implement the
Act, the FCC expressed concern that “permission not provided
in writing may result in some senders erroneously claiming
they had the recipient’s permission to send facsimile
advertisements.” 21 F.C.C. Rcd. at 3812. The opt-out notice
was one response to that concern; it would give recipients an
easy way to make clear their consent vel non. The FCC knew
well that without a standardized way to refuse unwanted ads
these cases could become, in the words of one district court, a
“factual morass” where the line between “solicited” and
“unsolicited” is rather hazy. Physicians Healthsource, Inc. v.
Stryker Sales Corp., 65 F. Supp. 3d 482, 497 (W.D. Mich.
2014). That court held that, where advertisers bought lists of
4
potential customers’ fax numbers from a professional
association whose members did not all want their ads, an
“unequivocal requirement of a simple opt-out notice on every
fax was the only way to give practical effect” to Congress’s ban
on unsolicited ads. Id.
The majority nevertheless maintains that the FCC stepped
over the “line” that Congress “drew” separating unsolicited ads
(regulable) from solicited ads (non-regulable). Maj. Op. at 9.
But Congress drew no such line. Congress expressly delegated
authority to the FCC to implement a prohibition on unsolicited
ads, and the opt-out notice requirement does exactly that. The
majority appears to assume that, by banning unsolicited ads,
Congress implicitly forbade regulation of ostensibly solicited
ads—even if the very purpose and effect of the regulation is to
refine the definition of which ads count as solicited (and so
permitted), and which are banned as unsolicited. We have said
that the expressio unius est exclusio alterius canon is “an
especially feeble helper in an administrative setting, where
Congress is presumed to have left to reasonable agency
discretion questions that it has not directly resolved.” Nat’l
Ass’n of Mfrs. v. SEC, 748 F.3d 359, 367 (D.C. Cir. 2014)
(quoting Cheney R. Co., Inc. v. ICC, 902 F.2d 66, 69 (D.C. Cir.
1990)), overruled in part on other grounds by Am. Meat Inst.
v. U.S. Dep’t of Agric., 760 F.3d 18 (D.C. Cir. 2014) (en banc).
This case reinforces that wisdom: The majority depends
entirely on a negative implication from the rule’s proscription
of “unsolicited” ads, thereby missing the point that the opt-out
notice on all fax ads is part of the FCC’s simple and effective
mechanism for differentiating solicited from unsolicited ads.
In short, the opt-out notice requirement represents a means of
implementing a given power, not the exercise of an
unauthorized power.
The majority laments that petitioner Anda was “potentially
on the hook” for $150 million in damages for failing to include
5
an opt-out notice on “solicited” ads. Maj. Op. at 7. But any
such award would simply reflect Congress’s decision that, to
prompt compliance, the requirement needed bite in the form of
at least $500 in statutory damages for each violation. Congress
wanted to put an end to unsolicited fax advertising. What is
truly striking is how simply fax advertisers like Anda could
have avoided such exposure by following the letter of the
regulation and adding a few words to their standard faxes. See
J.A. 986-89 (examples of compliant ads). While emphasizing
the litigation risk faced by the fax-ad industry, the majority
ignores Congress’s actual policy choice: to protect recipients
from unwanted ads that waste their supplies, clutter their fax
intake, and delay receipt of desired faxes. See H.R. REP. NO.
102-317, at 25 (1991); S. REP. NO. 102-178, at 2 (1991).
Congress decided that its policy could best be enforced through
a private right of action, and that statutory damages were
necessary to encourage plaintiffs’ counsel to invest in private
enforcement actions—an approach it apparently preferred over
either non-enforcement or enlarged federal administrative
capacity. If that policy is to be reversed, Congress—not this
Court—must make that decision.
II.
Because its statutory ruling moots the issue, the majority
does not reach the FCC’s decision to waive the opt-out notice
requirement for all faxes sent before April 30, 2015. Maj. Op.
at 11 n.2. I would hold that the FCC failed to establish good
cause for that sweeping, retroactive waiver.
“The FCC has authority to waive its rules if there is ‘good
cause’ to do so.” Ne. Cellular Tel. Co., L.P. v. FCC, 897 F.2d
1164, 1166 (D.C. Cir. 1990) (quoting 47 C.F.R. § 1.3). A
waiver is appropriate “only if [1] special circumstances warrant
a deviation from the general rule and [2] such deviation will
serve the public interest.” Id. “The reason for this two-part test
flows from the principle that an agency must adhere to its own
6
rules and regulations, and ad hoc departures from those rules,
even to achieve laudable aims, cannot be sanctioned.”
NetworkIP, LLC v. FCC, 548 F.3d 116, 127 (D.C. Cir. 2008)
(internal quotation marks and alterations omitted). Thus, an
agency may grant waivers “only pursuant to a relevant
standard” and “may not act out of unbridled discretion or whim
in granting waivers any more than in any other aspect of its
regulatory function.” WAIT Radio v. FCC, 418 F.2d 1153,
1159 (D.C. Cir. 1969). A waiver applicant “faces a high hurdle
even at the starting gate” and must “plead with particularity the
facts and circumstances which warrant” a waiver. Id. at 1157.
Here, the FCC did not establish that special circumstances
and the public interest favor a broad retroactive waiver.
First, the FCC overstated the confusion that regulated
parties reasonably could have experienced on reviewing the
FCC’s handiwork—the sole “special circumstance” it
identified. As the Eighth Circuit has noted, the “plain
language” of the FCC regulation, as published in the Code of
Federal Regulations, unambiguously required “solicited” faxes
to include the opt-out notice. Nack v. Walburg, 715 F.3d 680,
683 (8th Cir. 2013). In light of the plain regulatory language,
an errant footnote in the FCC’s explanatory order could not
have caused significant reasonable confusion. As the FCC has
conceded, “where a conflict exists between the text and a
footnote in the same agency Order, established precedent
provides that ‘the text of the [agency’s] decision controls.’” 29
F.C.C. Rcd. at 14010 n.97 (quoting United Steelworkers of
Am., AFL-CIO v. NLRB, 389 F.2d 295, 297 (D.C. Cir. 1967)).
Here, where the conflict was between the text of a published
regulation and a mere footnote in the agency’s explanatory
order, surely a prudent regulated party would undertake to
follow the regulation. Nevertheless, the FCC did not require
waiver-seekers to demonstrate that they were actually
confused, or even that there was general confusion in the
7
industry. Instead, the FCC accepted a waiver-seeker’s mere
“reference to the confusing footnote language” as sufficient to
establish “reasonable confusion” and, thus, special
circumstances. Id. at 14009-10. The FCC thereby threw open
the door to opportunistic waiver-seekers whose
unsubstantiated claims could be surmounted only by
(impossible-to-obtain) evidence that they were not actually
confused.
Second, the FCC failed to explain how its broad waiver
serves the public interest. The FCC barely even discussed the
public interests served by its opt-out notice requirement, much
less did it explain how granting a windfall to waiver-seekers
with records of wholesale, prolonged violations of that
requirement is consistent with those interests. The FCC
asserted that the waiver would rescue confused businesses from
the possibility of “significant damage awards.” 29 F.C.C. Rcd.
at 14011. But the interest of regulated parties in avoiding
congressionally authorized damages is not a “public” interest
of the sort contemplated by our precedents. We have explained
that public-interest waivers are for applicants whose conduct
“will not undermine the policy, served by the rule, that has been
adjudged in the public interest.” WAIT Radio, 418 F.2d at
1157. In other words, waivers are justified by reference to the
same public interest that supports the general requirement—not
by reference to regulated parties’ interest in avoiding costs the
statute imposes as part of its enforcement mechanism. For
instance, the FCC perhaps could have justified a targeted
waiver for advertisers who violated some specifics of the
requirement despite providing a reasonably clear but
technically noncompliant means for recipients to opt out. See,
e.g., J.A. 991-93. In any event, assuming a private interest
might be one factor for the agency’s consideration, the FCC
itself acknowledged it was not “an inherently adequate ground
for waiver”—even as it failed to offer any adequate ground. 29
F.C.C. Rcd. at 14011.
8
In my view, the FCC thus “eviscerat[ed]” its own rule via
waiver, rather than employing the “limited safety valve”
authorized by this Court’s precedents. WAIT Radio, 418 F.2d
at 1159.
III.
Because the FCC validly implemented the congressional
ban on “unsolicited” fax ads by requiring an opt-out notice on
all fax ads, and failed to justify retroactively and
indiscriminately waiving that requirement, I respectfully
dissent.