Remember how fax machines bleeped; kind of sounded like the internet dial-up tone? Well, the FCC essentially ruled that unless a fax is sent to a machine that makes that noise, the fax will not be considered an actionable fax under the TCPA.
To elaborate, the TCPA as amended by the Junk Fax Protection Act, prohibits any person from sending an unsolicited advertisement to a “telephone facsimile machine.” A “telephone facsimile machine” is defined as “equipment which has the capacity. . . to transcribe text or images from an electronic signal received over telephone line onto paper.”
In 2017, Amerifactors filed a petition asking the FCC to clarify that faxes sent to “online fax services” e.g. cloud based services that send faxes and allow users to access faxes as they do an email, are not considered a telephone facsimile machine fax per the FCC. Amerifactors is in middle of defending itself against a class action of which it believes the alleged violations were are mostly faxes sent by, and received from, an online fax service. The FCC ruled that it is clear that such online faxes are not considered a fax under the TCPA, and is outside the statute’s reach.
The FCC reasoned, “the TCPA’s language demonstrates that Congress did not intend the statute’s prohibition to apply to faxes sent to equipment other than a telephone facsimile machine. Specifically, the language of the statute proscribes sending a fax only to a ‘telephone facsimile machine.’ In contrast, Congress made clear that the proscription applies when such a fax is sent from other devices as well—specifically, an unsolicited facsimile advertisement can originate on any of three types of equipment: a ‘telephone facsimile machine,’ a ‘computer,’ or any ‘other device.'” Further, the FCC held that an online fax service is virtually an email, in that consumers can manage it as an email, including the fact that a consumer would have to connect to a printer to print it to paper (as opposed to a fax machine that spits out the fax so long as it is hooked up). Also, the FCC noted a pure fax shifts some of the cost of the advertisement fax from the sender, to the recipient, as well as clog up the machine’s bandwidth, and hinder legitimate business faxes. On the other hand, an online fax does not pose these threats.
In comments provided exclusively to TCPAWorld, counsel for the prevailing petitioner, Douglas B. Brown, had this to say:
“The FCC’s order was a well-reasoned and important order. . .The prior Commission defined computers as fax machines because it had the capacity to be connected to a printer… The current Commission order follows the Congressional mandate that communications received by a computer are not covered by the act…The Commission recognized that fax technology has a very restricted application and does not create the type of problems that existed in 1991.
The Commission order will probably substantially restrict fax class actions that generally target small businesses that were misled by fax marketers in believing that their faxes complied with the law. Often, these marketers made 1500 dollars or less while exposing their clients to tens of millions of dollars of potential liability because the statutory minimum recovery was from 500 to 1500 per fax… One such marketer was described as ‘Typhon Mary’ by 12 federal district courts. Yet, we are unaware of a single instance in which any plaintiff sought to enjoin the activity despite the clear evidence of liability.“
Ultimately this is good news, unless the fax comes through to an old school fax machine, it would skirt the TCPA per this new FCC Order.
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