Last Thursday the Federal Communications Commission (FCC) issued an order confirming that companies must include opt-out instructions on all fax ads, even for recipients who previously agreed to receive a fax from the company. The order clarifies that solicited fax ads, like unsolicited ads, must also comply with the rules set forth in the FCC’s 2006 Junk Fax Prevention Order.  All fax ads must contain an opt-out notice that (1) is clear and conspicuous and on the first page of the ad, (2) states that the recipient may make a request to the sender not to send any future ads, and (3) contains a domestic phone and fax number so that the recipient has a contact for opt-out purposes.

While not everyone at the FCC is in favor of the order, with Commissioners Ajit Pai and Michael O’Rielly concurring in part and dissenting in part, the majority opinion reasons that the ruling is necessary in order for recipients who initially consented to receiving faxes to have the option and a course of action if they later change their minds.

The Commission recognized that prior to this order the requirement to contain an opt-out for solicited fax ads may not have been clear and, in turn, the Commission granted a retroactive waiver of the opt-out requirement to certain fax ad senders and gave such senders six months from October 30th, 2014 to comply with the order.  Other similarly situated fax ad senders can also apply to receive waivers but they should make an effort to do so within the next six months.