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Bais Yaakov of Spring Valley v. Federal Communications Commission

United States Court of Appeals, District of Columbia Circuit

March 31, 2017

Bais Yaakov of Spring Valley, et al., Petitioners
v.
Federal Communications Commission and United States of America, Respondents Quill Corporation, et al., Intervenors

          Argued November 8, 2016

         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. 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.

          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.

          OPINION

          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.

         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 ...


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