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FCC Clarifies Efaxes are Subject to the TCPA
Practical Law Legal Update w-000-5602 (Approx. 4 pages)
FCC Clarifies Efaxes are Subject to the TCPA
by Practical Law Commercial Transactions
| Published on 02 Sep 2015 • USA (National/Federal) |
In a Declaratory Ruling, the Federal Communications Commission (FCC) explained that fax messages sent and received as traditional fax messages, converted to a digital file on a company's server and sent to a customer as an e-mail attachment, so-called efaxes, are subject to the Telephone Consumer Protection Act (TCPA) and Junk Fax Protection Act (JFPA).
On August 28, 2015, the Federal Communications Commission (FCC) issued a Declaratory Ruling and clarified that fax messages sent and received as traditional fax messages, which are then converted to a digital file on a company's computer and sent to a customer as an e-mail attachment, also known as an efax, are covered by the Telephone Consumer Protection Act (TCPA) and Junk Fax Protection Act (JFPA).
The TCPA and JFPA
The TCPA and JFPA make it unlawful for any person to use any telephone fax machine, computer or other device to send an unsolicited advertisement to another telephone fax machine, unless:
- There is an existing business relationship between the sender and the recipient.
- The sender has obtained the recipient's fax number through an acceptable method.
- The sender provides certain notices on the fax transmission.
For more information on the TCPA and the JFPA, see Practice Notes, TCPA Litigation: Key Issues and Considerations: Fax Advertisements and Direct Marketing.
The FCC’s rules define a telephone fax machine as equipment that has the capacity to transcribe text or images (or both) from either:
- Paper into an electronic signal and to transmit that signal over a regular telephone line.
- An electronic signal received over a regular telephone line onto paper.
The Efax Service
Westfax, a company that provides an efax service, petitioned the FCC seeking clarification of the TCPA and the JFPA as they applied to its efax service. Westfax's efax service:
- Receives a facsimile transmission on a fax server.
- Converts the received fax to a digital image on its own server.
- Sends the converted fax to its customer as a digital image file or PDF, attached to an e-mail message.
The New Clarification
The FCC explained that efaxes:
- Sent as faxes over telephone lines clearly satisfy the statutory requirement that the communication be a fax on the originating end.
- Satisfy the statutory requirement that the communication be a fax on the receiving end, because:
- the definition of telephone fax machine includes the fax server, modem and computer that receives the efax;
- the company's computers were attached to fax servers, which received and converted the fax into a digital format, attached it to an e-mail and sent it to the recipient-customer; and
- the recipient is the consumer to whom the content or fax or efax is directed, not the company that converts the fax into an e-mail attachment.
The Ruling identifies a distinction that was not clear. Now, the TCPA and JFPA apply when a fax meant for a recipient is intercepted by a service that:
- is not the recipient.
- converts the fax to a digital image on a server or computer connected to the incoming fax.
- sends the fax to the intended recipient as a digital image over the internet.
The TCPA and JFPA act as if the fax was not intercepted because of the business relationship between the service (Westfax) and the customer. It is not a separate communication because the converter is not the intended audience.
The TCPA and JFPA do not apply when a fax is sent to a recipient that:
- receives the fax on a fax machine.
- converts the fax into a digital image.
- sends the converted digital image to a third-party recipient, unrelated to the first communication.
The FCC Ruling describes this action as a fax solely sent as an e-mail over the internet.