The Federal Communication Commission is currently seeking comments regarding the applicability of the Telephone Consumer Protection Act (TCPA) to digital fax advertisements. Such faxes are sent via email and received digitally rather than using phone lines to receive and print an image of the communication. Under FCC rules, fax advertisements must comply with the TCPA’s notice and consent requirements and include opt-out notices, as explained in our previous post.

The request for comment relates to a petition by Joseph T. Ryerson & Son, Inc. seeking a declaration that digital fax advertisements are subject to the CAN-SPAM Act, which applies to emails rather than the TCPA. Ryerson is currently facing a putative class action alleging it sent unsolicited digital fax advertisements in violation of the TCPA. In its petition, Ryerson argues that digital faxes are distinct from e-faxes or faxes that are converted to emails before being sent, which the FCC recently ruled fall under the TCPA.

Tip: Parties interested in this issue may file comments with the FCC by December 8, 2015, and file reply comments by December 15, 2015.