In separate orders released on August 28, 2015, the Consumer & Governmental Affairs Bureau of the Federal Communications Commission issued two rulings affecting the scope of the FCC’s rules regarding unsolicited faxes. In the first order, the Bureau declared that “efaxes” are subject to the TCPA’s rules. The case involved a service in which a facsimile message is originated on telephone lines, reaches a fax server at the recipient’s destination, and is converted by the recipient’s server to an email for delivery to the recipient. Under this scenario, the Bureau ruled, the fax is subject to the TCPA because the particular efaxes described in the petition “are sent as faxes over telephone lines” and the equipment used on the receiving end qualifies as a “telephone facsimile machine” under the TCPA. The Bureau contrasted the decision with a 2003 decision involving computers with attached fax servers or modems (in which the FCC concluded that the TCPA rules do not apply), because the latter service involves faxes which are “sent as an email over the Internet” rather than sent as faxes over telephone lines. Westfax, Inc. Petition for Consideration and Clarification, Declaratory Ruling, DA 15-977 (rel. Aug. 28, 2015).
In the second order, the Bureau clarified that faxes promoting a business’ job placement services are “advertisements” within the meaning of the TCPA. In that proceeding, an employer had posted a request seeking job candidates. iHire, which describes itself as an “employment service,” faxed six “summary resumes” to the employer in response to the listing. In response to iHire’s petition for clarification, the Bureau concluded that iHire’s faxes were unsolicited advertisements because its submissions “amount to a ‘teaser’” to induce the employer to subscribe to iHire’s employment services for companies. The Bureau disagreed with iHire’s assertions that the faxes were purely informational, concluding that the faxes amounted to advertisements by considering, among other things, the “amount of space” devoted to iHire’s for-fee services, and concluded that the faxes were unsolicited, despite the job posting, because iHire was not itself a job candidate.