FCC Ruling: TCPA Governs eFax Ads

Recently, the Federal
Communications Commission (the “FCC” or “Commission”) confirmed that efax ads fall
within the regulations of the Telephone Consumer Protection Act (the
“TCPA”).  The Commission’s declaratory
ruling was issued in response to a petition for clarifications filed by
Westfax, Inc. (“Westfax”) almost six years earlier.

What
Is an eFax?

In its 2009 petition,
Westfax described an efax as “a fax that is converted to email.”  Westfax’s FaxForward efax service converts
received faxes into electronic images that are delivered directly to users’
email inboxes.

Similarly, in last week’s
ruling (DA 15-977), the FCC defined an efax as “a document sent as a
conventional fax then converted to and delivered to a consumer as an electronic
mail attachment.”

eFax
Ads Governed by TCPA

The TCPA was enacted by
Congress in 1991, and amended by the Junk Fax Protection Act (“JFPA”) in 2005,
to prohibit (among other things) the use of fax machines to deliver certain
unsolicited advertisements.  Westfax’s
petition sought clarification as to whether efax ads were also subject to these
prohibitions.

Interpreting its 2003
TCPA order, the FCC determined recently that the JFPA provisions of the TCPA
are equally applicable to any person “sending an unsolicited advertisement to a
computer attached to a fax server or modem.” 
The Commission observed that senders generally do not know what type of
device will receive a fax (i.e., whether a fax will be an efax) and, as such,
it would be inappropriate to apply a different set of rules for efax ads.

eFax
Recipients

Additionally, Westfax
questioned who the “recipient” of an efax is under the TCPA.  The FCC determined that the consumer to whom
the content of an efax is directed is the “recipient” of such an efax.  Consequently, the Commission found that
entities that convert faxes to email are not recipients of efaxes
because they are not the intended audience for the fax.

Fax
Opt-Out Language

The TCPA and its
implementing regulations require the sender of a fax advertisement to include a
clear and conspicuous notice on the subject ad that allows recipients to
“opt-out” of the receipt of any future fax transmissions from the sender.  Westfax’s petition requested that the
Commission provide an example of TCPA-compliant fax opt-out language, but the
FCC declined to do so.

Fax
Broadcaster Liability

Finally, Westfax asked
the FCC to clarify whether “fax broadcasters” – those who deliver fax messages
on behalf of another person for a fee – could be held liable under the TCPA if
the fax ads are unlawful.  Without
providing additional guidance, the Commission directed Westfax to its 2003
order, which held that a fax broadcaster could be held liable “if it
demonstrates a high degree of involvement in, or actual notice of, the unlawful
activity.”

Faxes
Have Evolved, but the TCPA Still Applies

It is critical that any
advertisements sent via facsimile – including efax ads – contain FCC-prescribed
opt-out language.  Moreover, marketers
must either obtain consumers’ prior express written consent before delivering
any efax ads or qualify for the Existing Business Relationship (“EBR”)
exemption.