Bais Yaakov of Spring Valley v. Federal Communications Commission

The court holds that the FCC’s requirement of opt-out notices on fax ads contravenes the plain text of the statute. The majority shortchanges the FCC’s statutory authority to “implement” Congress’s ban on “unsolicited” fax ads — those sent without “prior express invitation or permission, in writing or otherwise.” 47 U.S.C. § 227(b)(2), (b)(1)(C), (a)(5). The FCC reasonably concluded that opt-out notices are needed on all fax ads so that recipients can easily limit or withdraw their “invitation or permission.” Regulation of “unsolicited” advertising requires a mechanism for discerning whether…