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posted 8 years ago
Recently, the Federal
Communications Commission (the “FCC” or “Commission”) announced
that it is seeking public comment on whether Internet faxes that are both sent
and received digitally should be governed by the Telephone Consumer Protection
Act (the “TCPA”) or the Controlling the Assault of Non-Solicited Pornography
and Marketing Act of 2003 (the “CAN-SPAM Act”).
Petition
for TCPA Exemption
Joseph T. Ryerson &
Son. Inc. (“Ryerson”), a distributor and processor of metals, is involved in
pending TCPA class action litigation for delivering an Internet fax through a
third-party Web portal, which was then received by the intended recipient via
email. On November 4, 2015, Ryerson filed
a Petition for Declaratory Ruling with the FCC, asking the Commission “to
declare that alleged ‘faxes’ that initiate in digital form and are received in
digital form do not fall within the TCPA.”
Ryerson raises three arguments in support of its Petition.
First, Ryerson claims
that Internet faxes that are both sent and received digitally are more closely
analogous to an email than a traditional fax and, therefore, should be governed
by the CAN-SPAM Act. Ryerson notes that “no
paper, ink, or toner was used in the alleged transmission, and Connector’s
phone line was not tied up for incoming business calls or faxes. For all
intents and purposes, the transmission to Connector was exactly like an email –
it started on a Web-based platform that looks like many email user interfaces,
and it ended in the recipient’s email account.”
Distinguishing the subject messages from those featured in the FCC’s Westfax ruling this August, Ryerson’s
Petition highlights Westfax’s
definition of “efax” – “a fax that is converted to email” – and contends that
the FCC’s “analysis might be different if the message was both incepted and
received digitally.”
Second, Ryerson argues
that application of the TCPA to Internet faxes that are both sent and received
digitally would violate the First Amendment.
To that end, Ryerson maintains that because the TCPA is a content-based
restriction on speech – a regulation that distinguishes between speech by its
subject matter, function or purpose (telemarketing/advertising messages) –the
statute is subject to strict scrutiny and, therefore, may be justified only if
the government proves that application of the TCPA to such Internet faxes is
narrowly tailored to serve compelling state interests. Ryerson contends that Congress’s reasons for
enacting the TCPA’s fax restrictions (costs associated with the use of fax
machines and paper; the time in which fax machines are unable to process actual
business communications; and other “interference, interruptions and expense”)
are less than compelling when applied to messages transmitted and received in
digital form.
Third, Ryerson claims
that application of the TCPA to Internet faxes that are both sent and received
digitally would be unconstitutionally vague under the First and Fifth
Amendments because nothing in the express language of the TCPA or its
legislative history suggests that the statute would or should apply to such
messages. “Thus, if the TCPA is intended
to apply to digital messages (digital at inception and at receipt),” Ryerson
argues, “it fails to give a reasonable person notice of what is prohibited.”
Internet
Fax Marketers: Stay Tuned
The FCC accepted comments
from the public through December 8, 2015, on the issues raised in Ryerson’s
Petition, including whether: (i) Internet faxes that are both sent and received
digitally are beyond the scope of the TCPA’s coverage; and (ii) such messages
should instead be governed by the CAN-SPAM Act.
We will explore the Commission’s response to this Petition in greater
detail as more information becomes available.
In the interim, fax and email marketers should ensure that their
marketing campaigns remain in compliance with the TCPA, the CAN-SPAM Act and
other applicable regulations.
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