In Brodsky v. HumanaDental Insurance Co., 2018 WL 6295126, at *5–6 (7th Cir. 2018), the Court of Appeals for the Seventh Circuit denied class certification in a TCPA Blast-Fax case.
We agree with the D.C. Circuit (and the Sixth and Ninth) that, at a minimum, it is necessary to distinguish between faxes sent with permission of the recipient and those that are truly unsolicited. The question of what suffices for consent is central, and it is likely to vary from recipient to recipient (or so the district court reasonably could have concluded). Cf. Blow v. Bijora, Inc., 855 F.3d 793, 804–06 (7th Cir. 2017) (excluding from summary judgment potential class members “who provided no consent at all or whose consent was more limited”). Brodsky admits that he had a market agreement, and thus a pre-existing business relationship, with Humana, and that he expressly agreed in his market agreement that Humana could communicate with him by fax. Humana did so, and it even added a telephone number Brodsky could use if he wanted to stop receiving those faxes. But even if, as Brodsky has argued, this agreement somehow fails to establish his consent, we do not know what kind of pre-existing arrangement may have existed between Humana and the other fax recipients that Brodsky wants to represent. These are the hallmarks of an issue that requires individual scrutiny. See Howland v. First Am. Title Ins. Co., 672 F.3d 525, 534 (7th Cir. 2012) (holding that a “transaction-specific inquiry prevents class treatment”).  We must also take into account the fact that the FCC granted retroactive waivers of compliance with the Solicited Fax Rule for both sets of defendants.1 The waivers cover faxes sent before April 30, 2015. See In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 31 FCC Rcd. 11943 (2016) (Humana Order); In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 30 FCC Rcd. 8598, 8613 (2015) (United Stationers Order). While the legal underpinnings of these orders were called into doubt by the D.C. Circuit’s vacation of the Anda Order, neither the Humana Order nor the United Stationers/Essendant Order was appealed as part of Bais Yaakov, and so neither one was vacated by the D.C. Circuit. Furthermore, nothing in the reasoning of Bais Yaakov undermines the soundness of relieving these two companies from the strictures of the Solicited Fax Rule. While this might indicate that there is a common question on the effect of the waivers that affects all class members, the district courts in our two cases were within their rights to conclude that there are enough other problems with class treatment here that a class action is not a superior mechanism for adjudicating these cases. See Parko v. Shell Oil Co., 739 F.3d 1083, 1085 (7th Cir. 2014).  The final questions are whether the waivers have any effect on the availability of a private right of action and whether that issue is better handled through individual litigation or a class. The TCPA allows a “person or entity” to bring “an action based on a violation of this subsection or the regulations prescribed under this subsection” for injunctive relief, actual damages, or statutory damages. 47 U.S.C. § 227(b)(3). The alleged violation in our case is regulatory. We reject the plaintiffs’ argument that the statute itself requires opt-out notice on solicited faxes; it does not, and nothing in Holtzman supports engrafting such language on the statute. As the opening sentence of that opinion signals, the issue there had to do with unsolicited faxes that had no opt-out language, not faxes sent with advance permission that did include some opt-out language. 728 F.3d at 683. In addition, Holtzman arose at a time before the Solicited Fax Rule was challenged. It thus has no bearing on the issues now before us.  As a regulatory matter, the Solicited Fax Rule is subject to the general rule regarding “suspension, amendment, or waiver of rules.” See 47 C.F.R. § 1.3. That provides, in relevant part, that “[a]ny provision of the rules may be waived by the Commission on its own motion or on petition if good cause therefor is shown.” Id. Concerned about the confusion that the Rule had caused, the FCC invoked this authority when it issued the Humana and United Stationers waivers. See, e.g., Humana Order, 31 FCC Rcd. at 11951. But once again, even if the district court were eventually to conclude that the waivers are invalid, that is just one question: issues concerning solicitation, permission, pre-existing relationships, and the like, would remain as obstacles to class treatment.