In a junk fax case brought under the TCPA, the recipient’s “prior express invitation or permission,” like consent in an unsolicited telephone call case, is an affirmative defense on which the defendant bears the burden of proof.  At the class certification stage, predominance on an affirmative defense is examined differently than elements of the plaintiff’s cause of action.  As to affirmative defenses, the court considers only the defenses the defendant has actually advanced and for which it has presented evidence.  Here, the trial court erred in failing to grant class certification as to a subclass of the majority of those defendants claimed had consented by providing fax numbers when registering products purchased from the defendant or by entering into software-licensing agreements.  The registrations and license agreements did not vary, so whether they gave the required consent was a common issue which argued in favor of certification.  A much smaller group were said to have consented through individual oral or written communications. As those communications varied from one person to another, that subclass was properly denied certification.  As to a third group the case was remanded because the record wasn’t clear enough to say whether the alleged consents could be determined by examining a common document like the product registrations or license agreements.  The decision also holds that the FCC’s regulation (47 C.F.R. § 64.1200(a)(4)(iv)) requiring a fax ad to contain an opt-out notice was invalidated by Bais Yaakov of Spring Valley v. FCC (D.C. Cir. 2017) 852 F.3d 1078, 1083, a decision that is binding on all circuits.

Ninth Circuit Court of Appeals (Fletcher, W., J.); July 17, 2018; 2018 U.S. App. LEXIS 19641