(lCongre5'5' of tbe 1tniteb~tate5'
mll1.9fJtnllton, lll/t 20515
August 31, 2011
The Honorable Julius Genachowski
Chainnan
Federal Communications Commission
445 12th Street, S.W.
Washington, D.C. 20554
Dear Chainnan Genachowski:
We write to urge the Federal Communications Commission (Commission) to tlike
action on a Petition for Declaratory Ruling filed by Anda, Inc., on November 30, 201<\.
The Petition concerns Commission rules, which require fax advertisements sent with tJte
prior express consent ofthe recipient to include the same detailed opt-out notice requited
for unsolicited fax advertisements. The Petition asks the Commission to identify the .
statutory basis for that notice requirement and has been languishing for eight months
without any Commission action.
Due to the lack ofstatutory citation by the Commission, a number ofclass-actipn
lawsuits have been filed and threaten to impose massive liability on legitimatebusines~es
that are simply communicating with customers in the method that the customer has
requested.
The Commission's imposition ofan opt-out notice requirement for solicitedf~es
appears to depart from Congress's intent in enacting the Junk Fax Prevention Act of2005
(JFPA). The JFPA expressly restored businesses' ability to send fax advertisements :
based on an established business relationship (EBR). The JFPA required that in cases pf
an EBR, the sender include a detailed opt-out notice, allowing the recipient's wishes
regarding further fax communication to be clearly known. In contrast, there was no
reason to extend the opt-out notice requirement to flU( advertisements sent with the
recipient's express consent, and the JFPA nowhere imposes such a requirement. Where
recipients have made their wishes known by expressly opting in to receiving such faxes,
that business or individual need not be told how to opt out.
In an economic environment where businesses are struggling to regain their
footing and to raise the capital needed for new investment and job creation, they should
not be subject to potentially crippling class action lawsuits simply because the FCC failed
to clarify the statutory basis for requiring opt-out notices on solicited faxes. Thelonge~
this confusion about the rule's legal basis persists, the more pervasive these debilitating
lawsuits will become--exposing legitimate advertisers to massive unintended damages;
PRlNn:D ON RECVCLED PAPER
Page 2
The Honorable Julius Genachowski
The Commission should carefully consider the Petition and, ifneeded, open a proceeding
to clarify the rule's legal basis, so that legitimate businesses are not subject to debilitatIng
lawsuits that Congress never intended to authorize.
Please provide a response by September 9,2011 that advises us ofyour timeline
for addressing the Petition and whether you intend to seek public comment to facilitate
development ofa more complete record on this matter. We look forward to your !
I
response.
Sincerely,
Lee Terry
Member ofc:nnbress
ohnS s
Member ofCongress
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12
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Mike Rogers
Member ofCongress
Member ofCongress
Debbie Wasserman-Shultz
Member ofCongress I
mMatheson
Member ofCongress
J Walsh
Member ofCongress