In a new declaratory ruling, the Federal Communications Commission stated that efaxes fall under the purview of the Telephone Consumer Protection Act.

Responding to a 2009 petition from Westfax, Inc., a fax broadcasting company, the agency focused on the means of transmission and not the ultimate destination of a facsimile. “Efaxes are sent as a fax over a telephone line to a telephone facsimile machine and are thus subject to TCPA and the Commission’s rules,” the FCC wrote. “By contrast, a faxsent as an email over the Internet—e.g., a fax attached to an email message or a fax whose content has been pasted into an email message—is not subject to the TCPA.”

Westfax provides an efax service that transmits messages to fax machines or fax servers on another entity’s behalf. The company described an efax as a document that is sent as a fax over a telephone line to the recipient’s fax number that becomes an efax when a fax server on the receiving end converts the fax transmission into a digital image or PDF that is then sent to the recipient as an attachment to an e-mail message.

The FCC had no trouble finding that efaxes meet the statutory requirements of the TCPA, as they are both sent as faxes over telephone lines (satisfying the need to be a fax on the originating end) and remain a fax on the receiving end.

“The definition of ‘telephone facsimile machine’ sweeps in the fax server and modem, along with the computer that receives the efax because together they by necessity have the capacity to ‘transcribe text or images (or both) from an electronic signal received over a telephone line onto paper,’” the agency wrote. “Westfax’s description of efaxes makes clear that the recipient computers are attached to fax servers or services that convert the fax into a format that is attached to an email received by the computer.”

Just because the fax is converted into an email does not remove it from the TCPA’s reach, the Commission said, and efaxes implicate the statute’s consumer protection concerns just like a traditional printed fax. “Efaxes, just like paper faxes, can increase labor costs for businesses, whose employees must monitor faxes to separate unwanted from desired faxes,” the FCC said. “Moreover … it would make little sense to apply a different set of rules (or, in this case, no rule at all) to faxes sent to one type of device (a standalone fax machine) versus another (a computer and its attachments) when the sender generally does not know what device will receive the fax.”

The declaratory ruling also stated that the “recipient” of the fax is the consumer for whom the content is intended and to whom the content was sent by dialing that consumer’s fax number. Entities that convert faxes to email are not “recipients” of such faxes under the TCPA because they are not the intended audience, the FCC clarified.

Declining to provide safe harbor language for fax op-out notices, the agency said existing Commission rules and orders already identify the legal requirements. “We note that the 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 wrote.

The Commission also refused to make a generalized conclusion about the potential TCPA liability of fax broadcasters like Westfax who are retained to accept opt-out requests and possibly give advice on compliance with statutory rules. “Neither Westfax’s petition nor the comments provide a record sufficient to support the kind of fact-specific inquiry required to determine when a fax broadcaster’s involvement in sending faxes is so substantial that the fax broadcaster is liable,” the agency said.

The agency noted that seven comments were filed on the Westfax petition, all supporting a finding that efaxes were fully subject to the TCPA.

To read the FCC’s declaratory ruling in In the Matter of Westfax, Inc., click here.

Why it matters: Focusing on the means of transmission and not the ultimate destination, the declaratory ruling makes clear that efaxes fall under the scope of the TCPA and that all statutory requirements and regulations apply to such faxes. However, the ruling did leave open the question of potential liability for fax broadcasting services such as Westfax.