Last Friday, the Federal Communications Commission (the “FCC” or “Commission”) confirmed that efax ads fall within the regulations of the Telephone Consumer Protection Act (the “TCPA”). The Commission’s declaratory ruling was issued in response to a petition for clarifications filed by Westfax, Inc. (“Westfax”) almost six years earlier.
Should marketers send efax ads?
What Is an eFax?
In its 2009 petition, Westfax described an efax as “a fax that is converted to email.” Westfax’s FaxForward efax service converts received faxes into electronic images that are delivered directly to users’ email inboxes.
Similarly, in last week’s ruling (DA 15-977), the FCC defined an efax as “a document sent as a conventional fax then converted to and delivered to a consumer as an electronic mail attachment.”
eFax Ads Governed by TCPA
The TCPA was enacted by Congress in 1991, and amended by the Junk Fax Protection Act (“JFPA”) in 2005, to prohibit (among other things) the use of fax machines to deliver certain unsolicited advertisements. Westfax’s petition sought clarification as to whether efax ads were also subject to these prohibitions.
Interpreting its 2003 TCPA order, the FCC determined last Friday that the JFPA provisions of the TCPA are equally applicable to any person “sending an unsolicited advertisement to a computer attached to a fax server or modem.” The Commission observed that senders generally do not know what type of device will receive a fax (i.e., whether a fax will be an efax) and, as such, it would be inappropriate to apply a different set of rules for efax ads.
Additionally, Westfax questioned who the “recipient” of an efax is under the TCPA. The FCC determined that the consumer to whom the content of an efax is directed is the “recipient” of such an efax. Consequently, the Commission found that entities that convert faxes to email are not recipients of efaxes because they are not the intended audience for the fax.
Fax Opt-Out Language
The TCPA and its implementing regulations require the sender of a fax advertisement to include a clear and conspicuous notice on the subject ad that allows recipients to “opt-out” of the receipt of any future fax transmissions from the sender. Westfax’s petition requested that the Commission provide an example of TCPA-compliant fax opt-out language, but the FCC declined to do so.
Fax Broadcaster Liability
Finally, Westfax asked the FCC to clarify whether “fax broadcasters” – those who deliver fax messages on behalf of another person for a fee – could be held liable under the TCPA if the fax ads are unlawful. Without providing additional guidance, the Commission directed Westfax to its 2003 order, which held that a fax broadcaster could be held liable “if it demonstrates a high degree of involvement in, or actual notice of, the unlawful activity.”
Faxes Have Evolved, but the TCPA Still Applies
It is critical that any advertisements sent via facsimile – including efax ads – contain FCC-prescribed opt-out language. Moreover, marketers must either obtain consumers’ prior express written consent before delivering any efax ads or qualify for the Existing Business Relationship (“EBR”) exemption.