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Eighth Circuit Reverses Summary Judgment for Junk Fax Defendant in TCPA Case - Nack v. Walburg

June 17, 2013

Last week, Vincent Howard and our Rubidoux consumer protection lawyers wrote about the Telephone Consumer Protection Act. It's a federal law that creates liability for telemarketers and junk fax senders who don't strictly comply with certain requirements, and allows offended consumers to sue for statutory and actual damages. In Nack v. Walburg, the Eighth U.S. Circuit Court of Appeals ruled that its provisions apply even when the violation is only the failure to include federally required language. Michael Nack sued in St. Louis federal court after he got a fax advertisement from Douglas Walburg. Nack doesn't deny that his agent consented to receive the fax, but argues that Walburg should be held liable for failure to include opt-out language required by federal regulations. The district court granted summary judgment to Walburg, but the Eighth reversed.

Neither party went into detail about the facts of the case, except that they agree that Nack's agent agreed to receive Walburg's fax. After receiving it, Nack filed this putative class action, arguing that Walburg violated a federal regulation by failing to include language allowing the recipient to opt out. The TCPA prohibits unsolicited advertisements via fax, unless they contain a conspicuous notice permitting recipients to opt out of future ads at no further cost. As amended by the Junk Fax Prevention Act, the TCPA permits offended parties to sue based on a violation of the law or its implementing regulations, for an injunction and actual or statutory damages. The most relevant regulation extends the opt-out requirement to solicited faxes. Nonetheless, the district court held that it didn't apply to solicited faxes, based on the limits in the statute itself and contradictory FCC statements.

When the case was appealed, the Eighth Circuit solicited an amicus brief from the FCC itself, which said the opt-out language is also required from solicited faxes because permission may be revoked. Based on this, Walburg argued on appeal that the regulation is improperly broader than the statute. The Eighth Circuit appeared sympathetic to Walburg, noting that he faced a large amount of liability for doing something he had permission to do. Nonetheless, it deferred to the FCC's interpretation of the statute and its regulation, saying it must do so unless the interpretation is contrary to the statute's plain language or arbitrary or capricious. And the court found it was prevented from considering these exceptions, both of which amounted to challenging the regulation itself, by a federal law requiring challenges to go through the agency first. Rejecting a First Amendment challenge as waived because it was not brought up earlier, the Eighth reversed and remanded, suggesting that the proceedings might be stayed for an administrative decision.

Though the appeals court was sympathetic to the defendant, Vincent Howard and our Garden Grove consumer protection attorneys believe it made the right choice by upholding the regulation. Anyone who has received email "spam" or mailed credit card solicitations knows that it takes very little to get onto an advertiser's mailing list. Once you're there, it can take repeated requests to get off the list, if the advertiser listens at all. Requiring the opt-out language in all fax advertisements is thus a sensible way to protect recipients without imposing unduly on the sender. Vincent Howard and our Claremont consumer protection lawyers hope the FCC continues to hold to this interpretation in any future administrative action.

If you've received unsolicited, annoying telemarketing calls or junk faxes and you'd like to fight back, contact Howard Law, P.C. today to discuss how we can help. You can send us an email or call 1-800-872-5925 today.

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