Opt-Out Notices Not Required for Solicited Fax Advertisements

Recently, the Eleventh Circuit upheld the dismissal of a proposed class action by two hotel operators on the grounds that senders of solicited fax advertisements are not required to provide the recipient with an opt-out notice. Two hotel operators, which operate Super 8 Motels and Wingate Hotels, argued that Safemark Systems violated the TCPA by sending unsolicited fax advertisements that did not contain opt-out notices. The court concluded, however, that the faxes did not require an opt-out notice because Safemark had express consent to send the faxes.

In its analysis, the Eleventh Circuit found that the operators provided prior express permission for the faxes through their franchise agreements with Wyndham Hotel Group by providing their fax numbers and agreeing to receive “support” from approved suppliers, including Safemark Systems. “Although express permission requires a ‘clear and unmistakabl[e] communicate[ion],’ it does not require that a recipient state specifically that his permission includes faxed advertisements,” the appeals panel stated. “The hotels expressly agreed to receive information about purchasing items from Wyndham affiliates, so they cannot complain an affiliate sent them that kind of information.”

The Court’s holding centers on the Federal Communication Commission’s (FCC) decision to eliminate the so-called “solicited-fax rule,” which required opt-out notices regardless of whether recipients had provided consent to be faxed. The Court reasoned that, as a result of this rule elimination, Safemark’s faxes did not violate the TCPA. The FCC eliminated the rule following the D.C. Circuit’s holding in Bais Yaakov of Spring Valley v. FCC that the commission lacked the authority under the TCPA to regulate communications that were sent with the recipient’s consent.