FCC Says Email Faxes Are Not Covered By TCPA

The Federal Communications Commission ruled on Monday that emailed faxes are not regulated by the Telephone Consumer Protection Act.

A fax sent by an online fax service "is effectively an email," and is not sent by a telephone facsimile machine via a regular telephone line, as defined by TCPA, the FCC states.

The ruling stems from a class-action suit filed by Career Counseling against Amerifactor. In 2017, the latter asked the FCC for the ruling that was issued this week.

The TCPA states that a telephone facsimile machine is able to transcribe and transmit text or images from paper into an electronic signal, and to receive such a message “over a regular telephone line onto paper.”

One possible harm from a fax advertisement can occur when it “shifts some of the costs from the sender to the recipient,” in the form of paper and ink, the FCC states. In addition, so-called junk faxes occupy the recipient’s fax machine, making it unavailable for legitimate business messages, it adds.

But "faxes sent to online fax services do not pose these harms," TCPA says. In addition, email faxes “give consumers tools such as blocking capabilities to control these costs.”

Online fax services hold inbound faxes “in digital form on a cloud-based server, where the user accesses the document via the online portal or via an email attachment and has the option to view, delete, or print them as desired,” the FCC continues.

The ruling is “a welcome win to defendants fighting TCPA fax class actions,” JD Supra writes.

But email advertisers must still comply with laws such as CAN-SPAM, GDPR and the upcoming California Consumer Privacy Act.



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