Unsolicited advertisements sent by fax to online fax services are not covered by the Telephone Consumer Protection Act (TCPA), the Federal Communications Commission (FCC) has ruled.

The TCPA prohibits any person from sending an unsolicited ad to a “telephone facsimile machine,” defined as “equipment which has the capacity … to transcribe text or images (or both) from an electronic signal received over a regular telephone line onto paper.” The FCC previously held in a 2003 order that the prohibition does not extend to fax messages “sent as email over the Internet.”

In 2017, Amerifactors filed a petition for a declaratory ruling asking the commission to clarify that faxes sent to “online fax services” are not the same as faxes sent to “telephone facsimile machines.”

An online fax service is “a cloud-based service consisting of a fax server or similar device that is used to send or receive documents, images and/or electronic files in digital format over telecommunications facilities” that allows users to “access ‘faxes’ the same [way] that they do email: by logging into a server over the Internet or by receiving a pdf attachment [as] an email,” Amerifactors explained.

The FCC granted the petition, noting that online fax services do not cause the specific harms to consumers that Congress sought to address in the TCPA.

“[A] fax received by an online fax service as an electronic message is effectively an email,” the FCC wrote. “Under our precedent, faxes ‘sent as email over the Internet’ are not subject to the TCPA. Faxes sent to online fax services via an attachment that the consumer can delete without printing are effectively the same as ‘email sent over the Internet.’ Consumers can manage those messages the same way they manage email by blocking senders or deleting incoming messages without printing them.”

An online fax service cannot itself print a fax, the FCC added—the user of an online fax service must connect his or her own equipment in order to do so.

“As such, an online fax service is plainly not ‘equipment which has the capacity … to transcribe text or images (or both) from an electronic signal received over a regular telephone line onto paper,’” the FCC concluded. “Accordingly, under the plain terms of the Act, an online fax service is not a ‘telephone facsimile machine’ and a fax sent to one is not ‘an unsolicited facsimile advertisement’ prohibited by the TCPA.”

To read the FCC’s declaratory ruling, click here.

Why it matters: Taking a practical approach, the FCC recognized that an online fax service operates in essentially the same manner as an email and therefore falls outside the bounds of the TCPA.