United States Court of Appeals, District of Columbia Circuit
November 8, 2016
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
Petitions for Review of an Order of the Federal
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.
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.
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
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.
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.
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.
Kavanaugh, Circuit Judge.
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.
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.
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.
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.
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 ...