Last year, in the Amerifactors Declaratory Ruling (https://docs.fcc.gov/public/attachments/DA-19-1247A1.pdf), the Federal Communications Commission’s (FCC) Bureau on Consumer and Governmental Affairs (Bureau) ruled that “an online fax service that effectively receives faxes ‘sent as email over the Internet’ and is not itself ‘equipment which has the capacity . . . to transcribe text or images (or both) from an electronic signal received over a regular telephone line onto paper’ is not a ‘telephone facsimile machine’ and thus falls outside the scope” of the Telephone Consumer Protection Act’s prohibition on unsolicited fax advertisements.
At the time, there was also pending with the agency a Petition filed in 2015 by Joseph T. Ryerson & Son, Inc. (Ryerson) asking the FCC to clarify that, among other things, “messages that are initiated and received in digital form are not covered by the TCPA” because “such transmissions are most closely analogous to an email than a traditional fax.” On September 4, the Bureau, finding that “Ryerson’s technology is similar to the technology” it had addressed in Amerifactors, granted the Ryerson request “because the petitioner did not send an unsolicited advertisement to a telephone facsimile machine under the TCPA” (https://docs.fcc.gov/public/attachments/DA-20-1038A1.pdf).
Ryerson was the defendant in a lawsuit by one of its customers, Connector Castings, Inc., claiming a TCPA violation. The petitioner explained to the FCC the three step transmission process as follows: “(1) Ryerson employee uploaded the digital file to [a Web Portal managed and owned by an unaffiliated third party provider of communications tools]; (2) the third party transmitted the Ryerson digital file to Connector’s RingCentral Office@Hand account; and (3) the Ryerson file was received by Connector from its Office@Hand account as an email file.”
The Bureau reviewed its rationale in Amerifactors and concluded that “[a]s in Amerifactors, the document here, which was received by Connector’s Office@Hand online service, was ‘effectively an email’ sent over the Internet by the third-party service and not covered by the TCPA.” Further, “an online service cannot itself print a fax and thus is ‘plainly not ‘equipment which has the capacity . . . to transcribe text or images (or both) from electronic signal received over a regular telephone line onto paper and thus does not meet the statutory definition of a ‘telephone facsimile machine.’”
The Bureau also distinguished the Ryerson scenario from an “efax”, which it had addressed in its 2015 Westfax Declaratory Ruling (https://www.fcc.gov/edocs/search-results?t=quick&fccdaNo=15-977). That ruling distinguished faxes that began as faxes from those that did not and the “TCPA applies only to documents that begin as faxes.”
The Bureau disagreed with commenters who argued that the TCPA should be applied to “protect consumers from transmissions converted to email.” Unpersuaded, the Bureau again repeated “the TCPA does not apply to documents that are sent as email over the internet and received as email.” Moreover, the fact that they might ultimately be sent to a computer that could print them out did not change the analysis. “Virtually all email could be accessed by computers with printing capabilities; yet emails do not implicate the consumer harms that are the TCPA’s target, such as automatic printing.”
The Declaratory Ruling became effective upon its September 4, 2020 release. It should be read as limited to the facts on which the Bureau based its action. As the Bureau noted – [w]e are basing our determination solely on the facts in the record….”