On August 28, the Federal Communications Commission issued a declaratory ruling holding that electronic faxes or “e-faxes” are covered by the Telephone Consumer Protection Act and the Junk Fax Protection Act. E-faxes are communications that originate as a fax, but are converted to electronic files during transmission and received as attachments to emails. This ruling is curious as the regulation of faxes grew out of the unnecessary expenditure of expensive ink/toner and thermal paper of early fax machines, and e-faxes expend neither. The net effect is that the FCC is asserting that the TCPA applies to emails in this specific context.
The ruling said the agency’s interpretation of the statute focused on the sender’s means of transmission, not the ultimate destination. In addition, the FCC said its decision is warranted, as e-faxes can cause some of the same kinds of problems and costs for consumers and businesses that regular faxes can, even if they do not result in the same kind of uses of paper, toner, and ink.
Documents that are sent as an email from the beginning, however, rather than converted to electronic format along the way, are exempted from this rule. The FCC also declined to lay out specific language for a “safe harbor” opt-out provision for e-faxes specifically, saying “fax opt-out notice requirements have been in place for more than seven years and we have no evidence that other fax senders have struggled with finding language that would satisfy those requirements.”
The FCC’s ruling follows on the heels of its landmark July 10 Order which took an expansive view of the ambit of the TCPA’s regulation of “automatic telephone dialing systems,” and hence an expansive view of the applicability of the TCPA.