On December 28, 2007, the U.S. Court of Appeals for the D.C. Circuit released a decision in Biggerstaff v. FCC, No. 06.1191, in which two petitioners asked the court to review a 2006 FCC action involving tweaks to the Junk Fax rules. The tweaks had been made at the direction of Congress (in the Junk Fax Prevention Act of 2005 ("JFPA")). The two petitioners are both long-time critics of the junk fax industry, and they both challenged the FCC’s implementation of the "Established Business Relationship" exception to the junk fax rules.  That exception had been mandated by Congress, so there really wasn’t much to argue about.  But that didn’t stop the petitioners, one of whom in effect was challenging the FCC’s original adoption of the EBR exception (back in 1992), and the other of whom wanted the court to force the FCC to modify its regulatory language to change "permit" to "does not prohibit" in characterizing the effect of the JFPA.

The first petitioner got past the Scylla and Charybdis of standing and ripeness – meaning that the Court agreed at least to listen to his argument – but ultimately failed on the merits because nothing the FCC did in its 2006 rulemaking pursuant to the JFPA "re-opened" the 1992 agency action in a way which would permit judicial review of that earlier action.

The other petitioner was unable to convince the court that his lot in life would be any different if his suggested language change were to be implemented, so his petition was dismissed for lack of standing, with no consideration of the merits of his claim (such as they might have been).

The only moderately interesting aspect of this decision seems to be the first petitioner’s standing argument.  He argued that the implementation of the EBR exception imposes burdens on him because when he sues junk faxers, the EBR exception gives the junk faxers the opportunity to swamp him with voluminous discovery requests in an effort to demonstrate that he does in fact have some EBR with the faxer.  This is a burden to the petitioner, he argued, based on his own personal experience.  The court accepted this as an adequate demonstration of potential injury sufficient to establish "standing".

You can read all about it here.