certification in this case and the nd from the district's entry of summary judgment for the defendant safe mark both decisions are based on the same legal errors the st being primary one being that the district court imposed  sender can obtain prior express invitation or permission simply where the recipient voluntarily provides a fax number and where there's a business relationship if there is there though something more here than simply providing a fax number doesn't the record reflect that your client provided the fax number in conjunction with signing the franchise agreement so the two are sort of linked up the provision of the fax number and the agreement in the franchise  the consent in the franchise agreement to receive optional assistance in purchasing or whatever right there is the clause of the franchise agreement it is we may wyndham estate windham is we we may offer optional assistance to you with purchasing items used at or in the facility our affiliates may offer this service on our behalf your agreeing that they may make an offer that service on on their behalf to you that that's something that your client has agreed to that they have the right to correct and what's their service need to make another inference though you need another skip at least twenty one is that these on our behalf right correct and this is our affiliates right our affiliates can do this on our behalf to say from our piece of it doesn't seem that difficult to see if mark is an affiliate i agree but still even if you will treat that inference you still available the commercial availability or quality of any property good service without express prior prior expressed invitation permission where is the requirement in there that it be received by fax it just says that you're agreeing to receive advertise material advertising the commercial availability or quality of any property right but prior express invitation or permission to receive an unsolicited advertisement by telephone facsimile machine must specify that the ad will be received of proving prior express invitation or permission so i get it i mean i guess i get it that this statute is sort of about telephonic and facsimile communications but i just don't see in the definition of unsolicited advertisement that you have to have expressed in consented or permitted to receive faxes it's in the f c c use interpretations and those interpretations are binding in district courts that's what this court held in may as versus gulf coast collection the murphy case which we discussed in our briefs as well district court is not free to disregard those interpretations it must apply them even if it disagrees with them what about the fact that you signed this franchise agreement that we've just read the language aloud and you provided a fax number  why don't we make that link that you understood you were going to receive that you might receive things by fax but wouldn't it least one form of permissable communication i understand completely that is not necessarily an unreasonable inference but it is still an inference it is not expressly stated now what it does get you though this is exactly what congress contemplated in two thousand and five when it passed the junk fa congress provided there that if there is in a stablished business relationship between the fax sender in the fax recipient which is very easy to create in e b s created by any voluntary two way communication between t between the sender in the recipient the sender obtains the recipient's fax number in a permissible way including the voluntary communication of the number from the recipient to the sender and three the sender includes an opt out notice on the they were to about a few days apart they have no opt out ok so the fifteen that i'm sorry the fifteen does that meet the b r seems to me that one formally came from when correct or when them sent it through a rd party or some such  them and your client certainly have an existing business relationship right absolutely yes and there was the provision of the fax numbers for some directory or something right correct and there was opt out language notice is not even close to complying with the statute or so that's where the argument hangs on the fifteen notice exactly yes don't notice has there been insufficient right there's no fax number in the up in the notice to use for sending a request it does not advise that an opt out request must honored within thirty days in other words to be snippy it doesn't know that they can demand an opt out as opposed to just requesting one would you please take me off the list it's a legally enforceable demand it does not advise the recipient of what the requirements for a compliant opt out request are the statute and the regulation impose requirements on the recipient in making the opt out request for example if you don't specify the fax number that you want removed from the list it's not it's not an enforceable opt out request if you just give your name and address for example and say you know i'm i'm course motels please take me off your list not enforceable if they send follow on fax advertisements they can still invoke the statutory safe harbor and it's also not clear in conspicuous is another unsolicited fax and presumably your opponent would argue that it was a solicited facts correct i'm arguing is an unsolicited fax that falls perfectly within the parameters of what congress was trying to do in the j solicited how do you address that issue as i'm actually with with the question that has been posed to you by the court about whether or not with the with the d c circuit opinion and i and my clients along with another robot it's like that's the way it's done isn't it it's published in the federal register is no longer part of the c f r right i disagree completely it is how it's usually done there's usually a bureau level order that's taken on delegated authority and then any party any aggrieved party can file an application for review from that bureau level order with the full f c c meaning the five commissioners who are appointed by the president with the advice and consent of the senate my clients in this case have done that along with a group of other pla do anything and the f c c does not have to acquiesce in the d c circuits determination i think this f c c probably will acquiesce in a determination given chairman pies and commissioner o'reilly's views on the top because they dissented from the tw appeals or in any of the circuit court for any jurisdiction where one of my clients one of my petitioners resides or has a principle as a business so i might take it to the nd circuit i might take it to the circuit i might take it to i don't know i'm  not sure i ever really done the calculus on where i'm going to file but there could be multiple petitions filed if there were from then there's a procedure for consolidating those into one circuit you know as as happened in the bay as you but that's not over can i can i just get i just want make sure because this was a little unclear to me from the district court's opinion but you don't disagree do you that each of the two clients here did provide their fax number to wyndham in conjunction with the signing of the franchise agreement yes i agree with the ok i just want to make sure that's helpful to me the district court's opinion seemed to me to suggest that one of them did and that one of them sort of provided that any old time earlier in the process but it sounds like they both provided it in conjunction with the signing of the franchise agreement they both they good morning my name is joseph frank or i'm here on behalf of save mark may please the court there's a lot for me to talk about i think i'd like to start with the court's question about how could there be a violation the case is in the th circuit a very clear there is an analysis that's not on to make sure that it's not a temporary withdraw all that may be that the city or the statute you know they're not going to reinstate it at a later time it has your opponent says they might and it's there's been a petition for review filed and that they might i find that very interesting because the d c circuit said that you know based on separation of powers the c was way out of balance in what it did and it did not have the authority nor was it granted the authority by congress and then in the f c c he's order of november of two thousand and eighteen this reads like a mayor  right that a petition for review means that it might be at least theoretically reinstated i don't see how that's possible when the f c c itself called its own rule unlawful how could it reinstate a law that it's ignored it was on what i understand it what his argument was a moment ago was that it's when they just say that there was a problem with the rule but it's another thing to say that the solution is to repeal it and as is is argument is that the d c circuit at the commission was wrong or the chief of the bureau i guess was wrong to interpret that d c circuit decision as requiring the removal of the regulation and there's going to be litigation about that and so it could at least theoretically be reinstated it's not yet i have i have no doubt that my friend is going to make those appeals i don't see any basis for that the way by a shock of came to be there were several petitions filed it was a multi district litigation consolidation the whole point of an m d l consolidation is to avoid this is to have let's not do it ten different places let's not have to inconsistent results in the waste of the economy let's consolidate it and we all agree whatever that court says we're all going to follow it and that's what happened by a shock off that was consolidated and d l there's plenty of authorities in the papers that say when that happens that should be the end of it it sounds like now we're talking about two slightly different things one is are we bound by that's the argument you're currently making to is does the f c c or the chief of the bureau's purported withdrawal of the rule move the case and your adversary says not necessarily like maybe predictive lee we might assume that the f c c is going to concur in that judgment but it hasn't happened yet right so as to the latter piece what about that i still think there's any evidence to show that this rule can come back and as a matter of fact at the time this order in november two thousand and eighteen f c c order came there was tentative to be excused from the solicited facts will safe mark my client was one of them based on this very litigation the order speaks to my application ok it says in the footnote for c partition of safe mark systems for retroactive waiver and then the discussion the f says we also dismiss is moot the ten pending petitions for retroactive waiver then there's an order at the end and i disagree with council completely so st they repeal the statute and then the nd part and ordered that the application for retroactive waiver filed by safe mark and others are dismissed as moot so we have an application that there was over one hundred granted one hundred they were still ten pending at the time that this order was issued and it was dismissed is moot why would they dismiss it as moot if they were going to bring it right back it just doesn't make any sense this order shows exactly  is not coming back unless it comes back from congress it's certainly not coming back from from the f c c so then that brings us i guess back to the question where your adversary began which is the statute itself why is it that this is not an unsolicited fax it strikes me that on the language of the statute at least the paradigm case of the solicited facts would be you may send me or please do send me material advertising th commercial availability or quality of any property good or service how do we get from that paradigm case to this case well that never really happens right i mean you know in a business relationship if we're doing business with one another and you give me your contact details and i can and i give you and i contact you that way you haven't really asked for me to contact you but you've given me we've set up a mode of communication that is agreed to between the parties trying to square it with the language of the statute which says express invitation or permission and that which must mean something i looked at you know express definitely stated not merely implied right so i guess i'm not fully satisfied with the answer well that's just sort of not how it works in the real world everybody kind of winks and nods and knows that when you provide a fax number you're effectively you know concurring now i understand  have the record is packed with it and i have a few highlights here that i'd like to go over which can answer your question great so the st thing is what did the f c c say with regard to the t c p s a judge present in this class or decision actually quotes this and says quote persons who knowingly released their phone numbers have in effect given their invitation or permission to be called at the number which has been given absent instructions to the contrary four windham declarations they were really really helpful and judge president over a line and them to a great extent the st one is the declaration of andrew good to so he's the vice president of marketing communications and technical solutions at w s s i which is world wide solutions he describes in detail the approved supplier program and how the franchisees we're talking about franchisees th hotels aren't free to decorate however they want just so i'm clear because i don't want you to sort of spend all of your time sort of marching through declarations is the gist of it no no nobody said as we've discussed  earlier i'm sure there's no witness who testified somebody at the hotels told us that we could send them faxes right so we're not we're not relying on that kind of express statement instead we're going to we've got to kind of piece it together from other evidence and the principle piece of documentary evidence i assume is this provision in the franchise agreement four point four there's three sources of information of the franchise agreements point for connection too with the notice in the franchise agreement that includes fa number that's right your honor that's number one that's number one and two and before we move beyond number one just so i'm clear four four we may offer optional assistance to you with purchasing items used at or in the facility and our affiliates can do it for us right i'm willing to sort of ignore the affiliates can do it for us i'm interested in whether optional assistance with purchasing is express permission to receive advertisement because the last sentence also says we'll maintain and provide to you lists of suppliers approved to furnish martin bearing items not will provide your information to them but will provide their information to use so it sounds like the arrow is running in the other direction to me well if you look at the declaration of tracy ripper from from wyndham hotel group she testified that the approved supplier program was divine designed to benefit the franchisees by intent of finding vendors such as safe mark who are expected to provide competitive pricing on products that conform to the applicable standards this whole approved vendor program oh point of the list in other words is that the franchisee knows of this is someone who's who can send us that information is that right that's right your honor and there are standards if you want to be part of windham ok you have to meet our standards you can't paint whatever you want you can have low quality carpeting and and everything else including safes we don't want to be contacted by fax so you would view it that this is a solicited fax by virtue of the fact that they signed the franchise agreement and provided the fax number that if they didn't want to receive faxes don't give us your fax number correct and it's not just the franchise agreements it's they there was contact forms these relationships went over decades they were contact forms how would you like to be contacted of course provided to them with their fax number senior director of contracts compliance for wyndham hotel group she testified that course provided their fax numbers in the following ways through the franchise agreement of course also provided its contact information what is that form what does it say to whom is it being given what do we have about that that's from the franchisee course to wyndham it's not directed to say what is the forms it's just a contact form it i think it doesn't say anything except please provide your contact details when when where the dates that these forms were exchanged between or someone the contact forms january th two thousand and ten which was before any of the faxes in question and then again november th two thousand and fifteen and where just so i have it straight my head where is that in relationship to the signing of the franchise agreement so course had two franchise agreements i ninety seven and that was a twenty year agreement so would your position be the same that this was expressed permission or and if there was a franchise agreement signed with four point four in it but no fa provided in conjunction with the signing of that fax of that franchise agreement and like some other old time twenty years before or five years hence there was a fax number provided or did the two in your mind need to be fused so that the  according to wyndham wanted to be contacted and in a mode other them facts that would have been ok say far testify they didn't want to send the facts as they had to send the faxes because of the program that's how windham wanted to do it but i don't believe any of the franchisees were obligated to accept a fax that's how it was set up and unless you want to opt out and be contacted some other way but i guess the reason i'm asking is that the contact form just sort of a blank contact form  i think the contact form is not as great a evidence as the content that the franchise agreement was and then the rd thing i was going to say was also participation at the global conferences is global conferences were really nothing more than come meet the vendors come meet the products and services that we offer hey guys make sure you're all in compliance with wyndham standards how would you like to be contacted by these vendors because that's the whole point and  h was it so was the declaration of christine stupor she was the senior manager event planning for wyndham this is at docket number seventy dash eight she said that course provided his fa number at the april two thousand and twelve global conference at the april two thousand and fifteen global conference so provided its fax number at the april two thousand and fifteen conference and safe  of all of those conferences if we say that this is an unsolicited fax to you  yes yes because there's no doubt there's no issue here that the faxes that were sent to do not have the statutory required opt out language that's not my position tha you my friend stated that it never really happens in the real world that somebody calls up the business and says can i send you a fax ad or the other way around the recipient calls the center and says what you some information by fax that's not quite right it does happen sometimes and  the sender can call but but there is a certain truth to it because to me it's a relevant question is that right and they did they give you your client give permission to be contacted by fax in this manner that's the real question right not to send faxes i have not not could it have been done better but was a good enough right but i do think it's relevant that that it does it does show exactly what congress thinking in two thousand and five because they realize that businesses have each other's phone fax numbers and they want to facilitate interstate commerce and allow businesses that have relationships to fax each other without getting express permission but at the same time they were very concerned  number you're telling them communicate with me by fax i could see how you could infer that but that's not express that's not an express permission and in writing it i mean it's part of a written agreement that's all expressed means isn't it it's not implied in this you know somebody's wink or nod it's it's written in an agreement you know express has nothing to do with written or not written expressed means clearly in unmistak stated it can be oral it can be written but that that's not the distinction between writing and oral or written i mean i actually think that is like the really interesting medical question in this case is what does express mean does express mean express in the sense of definitely there on the front and there is definitely an agreement which there is here right undoubtedly there is an agreement it happens to have been in writing but it's there for all to see in black and white and then separately does express apply within the four corners of those agreement to require clarity or certainty that's where i get hung up i'm not sure that this four four is express permission or invitation within the four corners of it i don't doubt for a minute that your client sign a written agreement expressly agreeing to something i just can't quite tell what you expressly agreed to that means it's not express permission for s six they say you they say it needs to be permission the consumer needs to understand that they will be c p receiving advertisements by facsimile that that's something else by facsimile not advertised by facsimile and not advertisements by some other means like mail or you know telegram i don't know it's pacifically governs tell the use of telephone facsimile machines because that was such a problem that congress prohibited it in one thousand and just who we help me just so i can write the citation down what's the the i know it's in your briefs but the the regulations that you're relying on that get you from the statutory text to faxes specifically you said something like the f c c said this in the late ninety's and then again in two thousand and four something  i've given you my fax number in the in the and then you sign an agreement made that you can get receive advertisements from them you know that that says nothing about faxes i don't know if you're going to send advertisements to my telephone facsimile machine using up my paper and t you might be sending them to me by mail just to mail just so go ahead but if you listed both telephone number address and fax number and you agreed that our affiliates may advertise him one might reasonably infer that it would be ok to send fat faxes advertised by fax but it's not an express permission or invitation it's an implication it's an inference just so i'm clear i just want to make sure where all of the requirements are coming from though because i think that judge prior's question four point four says we may advertise to you items to be used in your facility that meets in my mind would meet the statutory language it may not get you to what you're telling to the f c c has said which is to require some prophylactic on top of the statutory language you've got to agree to fax advertising not just advertise with all due respect the statute means what the f c c says it me i get that i get that but just  i'm clear on the face of the statute there is not a requirement that you agree to receive fax just that you agree to advertise i disagree because the f c c has interpreted it to mean that i know but now we're just playing word games i'm just saying on the face of the statute that's what the statute says i understand your permission is that the f c c has definitively you would say interpret it to require prior express permission to fax advertising it so all i'm asking you is i need to go look at the f c c is interpretations correct that is not myself the fa