FCC Junk Fax Waivers Violated Due Process, Claim Petitioners
The U.S. Court of Appeals for the D.C. Circuit recognizes that changing an administrative interpretation and applying it retroactively is "fundamentally unfair," and that's exactly what the FCC did in 2014 with the retroactive waivers granted to some companies in…
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the agency's junk fax order (see 1410300047), petitioners appealing those waivers told the court in a letter Thursday (in Pacer). Counsel for the petitioners in Yaakov of Spring Valley et al. v. FCC said the waivers violated the due process rights of the petitioners, who "have devoted years to pursuing complex federal litigation based on (Telephone Consumer Protection Act, or TCPA) violations that occurred before the FCC's Waiver Ruling." The petitioners all received fax ads that allegedly didn't include the required opt-out notices, and filed TCPA complaints against the fax advertisers that sent them. They said those waivers are attempts to extinguish their claims. The petitioners said the basis for the letter was the D.C. Circuit's PHH v. Consumer Financial Protection Bureau this month in which the court ruled the agency's power should be curbed. Yaakov et al. also said PHH, in its holding that the CFPB single-director structure intrudes on presidential Article II powers and thus violates separation of powers, also bolsters their separation of powers argument since the FCC hasn't cited one case in which it had power to retroactively end a statutory private cause of action with express statutory authority. The FCC didn't comment Friday.