FRIDAY, OCTOBER 31, 2014 VOL. 34, NO.

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Top News
Telecom, Media Industry PAC Money Seeks to Sway Fate of Senate ...................................................................................................1
Draft NPRM on Extending Online File Requirements to Cable, Satellite, Radio on Circulation .........................................................6
FCC Affrms Junk Fax Requirement, But Grants Waivers .....................................................................................................................7
Interference Issues, Receiver Quality, Must Be Addressed to Fix AM Band, Engineers Say ................................................................9
Stakeholders Seek Additional Guidance on NIST Cybersecurity Framework, Not Full Update .........................................................10
Comm Daily

Notebook ................................................................................................................................11
Capitol Hill ....................................................................................................................................................11
Wireless ......................................................................................................................................................... 13
Internet .......................................................................................................................................................... 14
International Telecom .................................................................................................................................. 14
Broadcast ...................................................................................................................................................... 14
Cable.............................................................................................................................................................. 15
Satellite .......................................................................................................................................................... 15
Communications Personals ......................................................................................................................... 15
Table of Contents
7COMMUNICATIONS DAILY FRIDAY, OCTOBER 31, 2014
Appeal Considered
FCC Affirms Junk Fax Requirement, But Grants Waivers
An attorney representing plaintiffs in more than 50 lawsuits against companies for allegedly sending
fax ads without opt-out notices blasted Thursdays FCC order, which reaffrmed the notice requirement in
the commissions 2006 Junk Fax Order. But the order, acknowledging confusion by companies, granted
several of them retroactive waivers.
Granting the waivers retroactively, while the companies are involved in ongoing civil cases for
allegedly violating those laws is unusual, attorney Brian Wanca told us. Its disturbing that the commission
ruled in favor of a few large well-funded corporations with lobbyists and ignored hundred and hundreds of
complaints about these kinds of advertisements, said Wanca, who said hes exploring avenues for appeal.
Wanca declined to say how the order might affect those cases because he said the agency lacks the consti-
tutional authority to grant waivers to the congressionally approved Junk Fax Protection Act in 2005, which
amended the Telephone Consumer Protection Act.
The order is a win for certain companies facing class-action litigation, said Loeb & Loeb
partner Christine Reilly, who spoke on a panel about TCBA class-action lawsuits earlier this month
(see 1410210061). The ruling has the potential to shut down or curtail existing litigation that seeks to
extort millionsif not billionsof dollars from unsuspecting companies that were not aware of, or did not
believe, that these requirements applied to them."
Commission staff had the tough job of reconciling language in an order that seemed to send mixed
or at least confusing direction to entities trying to comply, said Patton Boggs partner Monica Desai, a for-
mer FCC Consumer and Governmental Affairs Bureau chief who represents one of the petitioners seeking
relief, Cannon & Associates.
At the same time, the reaffrmation of the opt-out notice requirement by a majority of commis-
sioners drew fre from Commissioners Mike ORielly and Ajit Pai, who concurred and dissented in part
to the order.
While some have argued that the rule is a good policy that benefts consumers, it suffers from a
fundamental faw: the FCC lacked authority to adopt it. OReilly said in a statement. The law prohibits
sending unsolicited fax advertisementsads that are sent without prior express invitation or per-
mission, in writing or otherwise except in the context of an established business relationship, ORielly
noted. Thus, on its face, the provision does not apply to ads sent with prior invitation or permission,
ORielly argued.
O'Reilly concurred with granting waivers for petitioners and similarly situated companies, and
said the commission at his request agreed to contact companies that dont ordinarily follow FCC provi-
sions to let them know similarly situated companies should apply for waivers by April 30. Companies
8COMMUNICATIONS DAILY FRIDAY, OCTOBER 31, 2014
that had petitioned for and were granted waivers have until Oct. 30 to come into compliance with the
law, the order said.
The commissions reasoning is convoluted gymnastics, Pai said in a statement. To the extent that
our rules require solicited fax advertisements to contain a detailed opt-out notice, our regulations are un-
lawful. And to the extent that they purport to expose businesses to billions of dollars in liability for failing
to provide detailed opt-out notices on messages that their customers have specifcally asked to receive, they
depart from common sense, Pai said.
Reilly agreed with ORielly and Pai, saying the statutory scheme created by Congress, and to
which the commission is bound, concerns unsolicited fax advertisements, not solicited ones. The commis-
sions attempt to fnd statutory authority where none exists is disappointing. From a policy standpoint,
it is diffcult to understand why fax senders that have been provided permission to send faxes should be
required to include the litany of technical opt-out requirements, she said.
The order also denied several requests for a declaratory ruling that the commission lacked stat-
utory authority to require the notice be sent with prior permission, or that the Communications Acts
Section 27(b) was not the statutory basis for the requirement. The section allows relief in court, ac-
cording to petitions.
The order comes amid a sharp increase of class-action suits about robo calls and junk faxes fled
under the TCPA, said panelists at an FCBA event Oct. 20. A number of other petitions involving robocalls
are pending before the commission, the panelists said.
The order responds to a 2012 petition for reconsideration from Anda, Inc., a pharmaceutical com-
pany facing junk fax suits in Florida federal court and Missouri state court, after the Consumer and Gov-
ernmental Affairs Bureau denied its 2010 request for a declaratory ruling. The order also responds to
multiple other petitions seeking various forms of relief, the order said. The commission said the phrase
prior express invitation or permission was not defned by Congress, the order said. Andas attorney
was still reviewing the order and had no comment.
To implement the junk fax law, the commission in its 2006 order said express permission from the
consumer need be secured only once to send them fax advertisements, unless the consumer revoked permis-
sion by sending an opt-out request, Thursdays order said. The question then is whether the consumer still
agrees to get the ads, the order said. Whether the consumer still agrees to get the ads is important, the order
said. Some fax recipients, after initially consenting to receive fax ads, will decide they no longer wish to
receive future faxes, the order said. Without the opt-out requirement, recipients could be confronted with
a practical inability to make senders aware that their consent is revoked, the order said. At worst, it would
effectively lock in their consent.
The commission, though, granted the waivers, saying a footnote in the commissions junk fax order
caused confusion because it said the opt-out notice requirement only applies to communications that con-
stitute unsolicited advertisements, which may have caused some parties to misconstrue the commissions
intent to apply the opt-out notice to fax ads sent with the prior express permission of the recipient.
Wanca disagreed, saying, I dont think the footnote negated the plain language of the law. If
some element of it was confusing, then why is it none of the deep-pocketed defendants didnt ask for clari-
fcation? All of a sudden, theyre sued and theres something confusing about it. Kery Murakami