The Federal Communications Commission (“FCC” or “Commission”) has released a declaratory ruling holding that a type of fax that contains unsolicited advertisements – identified by the FCC as an “efax”1 – is subject to the consumer protections of the Telephone Consumer Protection Act (“TCPA”) and the Junk Fax Protection Act (“JFPA”).2

Under the TCPA, the FCC has long prohibited the use of a telephone fax machine, computer, or any other device to send an unsolicited advertisement to a telephone fax machine, unless there is an Established Business Relationship (“EBR”) between the sender and recipient.3 However, the efax Declaratory Ruling marks the first time that the FCC has explicitly extended its regulatory reach to efaxes under the TCPA and JFPA.

In its ruling, the FCC reasoned that efaxes satisfy the statutory requirements of the TCPA because they are sent as faxes over telephone lines and the equipment used to receive the faxes meets the TCPA’s definition of a “telephone facsimile machine.”4 The FCC did recognize a difference between communications originating as faxes over a telephone line and communications originating as emails over the Internet.5 Specifically, because the Commission has previously interpreted the TCPA to apply only to those faxes that begin as faxes (not those that begin as emails), a fax sent as an email is not subject to the TCPA.6 Similarly, because they do not begin as faxes, the Commission determined that the TCPA does not apply to faxes attached to an email message, or faxes whose content has been pasted into an email.7

Other important points from the efax Declaratory Ruling include:

  • The “recipient” of an efax is the person for whom the fax’s content is intended and to whom the fax’s content is sent by dialing the consumer’s fax number. Thus, entities that convert faxes to email are not “recipients” of efaxes because those entities are not the intended recipient of the efax.8
  • For now, at least, the FCC has declined to provide “safe harbor” language for fax opt-out notices, purportedly to provide fax senders with flexibility in crafting such notices.9
  • The Commission so far has elected not to make a generalized ruling that all fax broadcasters are exempt from TCPA liability, choosing instead to make such determinations on a case-by-case basis.10

The major takeaway of the efax Declaratory Ruling is that the FCC will not let communication technology advances leave consumer protections behind. Entities that send unsolicited advertisements via efax should beware the stricter federal requirements.

1.   As used in this client alert, the term “efax” strictly refers to and incorporates that term as used and defined by the FCC in its Declaratory Ruling. It in no way refers to, incorporates, or reaches any legal conclusion regarding the applicability of the FCC’s Declaratory Ruling to “eFax,” the registered trademark of j2 Global Communications, Inc. No infringing use of the term “eFax” is intended in this client alert.
2.   In the Matter of Westfax, Inc., CG Docket No. 02-278, Declaratory Ruling, DA 15-977 (rel. Aug. 28, 2015) (“efax Declaratory Ruling”). For TCPA and JFPA purposes, the FCC has defined an efax as a document sent as a conventional fax and then converted to and delivered as an email attachment. Id.
3.   The JFPA was enacted specifically to amend the fax advertising provisions of the TCPA. The JFPA established the EBR exemption; ordered senders of fax advertisements to include notices and contact information on each fax to allow recipients to “opt-out” of future transmissions; and specified circumstances under which a request to “opt-out” complies with the JFPA. See efax Declaratory Ruling at ¶¶ 3, 8; The Junk Fax Prevention Act of 2005, Pub. L. No. 109-21, 119 Stat. 359 (2005) (codified as 47 U.S.C. § 227(b)(1)(C)).
4.   efax Declaratory Ruling at ¶ 9 (“The TCPA applies to a fax that is sent as a fax over a telephone line to a device that meets the statutory definition of ‘telephone facsimile machine,’….”). The FCC notes that a “telephone facsimile machine” includes a fax server, modem, and the computer that receives the efax because together, they have the capacity to “transcribe text or images (or both) from an electronic signal received over a telephone line onto paper.” Id. at ¶ 9.
5.   Id. at ¶ 10.
6.   Id.
7.   Id.
8.   Id. at ¶ 12.
9.   Id. at ¶ 13.
10.  Id. at ¶ 14.