FCC Confirms Fax to Email Subject to TCPA, Releases Additional Fax Rulings

On August 28, 2015, the Federal Communications Commission, through its Consumer & Governmental Affairs Bureau, issued three separate rulings on petitions relating to its fax rules under the Telephone Consumer Protection Act.

In a declaratory ruling, CGAB clarified that:

• faxes sent and received over telephone lines are subject to TCPA regulation even if those faxes are “converted to and delivered to a consumer as an electronic mail attachment.”
• “the consumer to whom the content of a fax or efax is directed,” and not the company hosting the fax servers that receive the faxes over a telephone line and re-send the faxes to the subscriber of the service, is the recipient of the fax under the TCPA.
• the act of sending a previously-faxed document by email is not subject to TCPA regulation.

CGAB also declined to provide “safe harbor” fax opt-out language, noting that the TCPA rules and orders already set forth the required content for opt-out notices.  Finally, CGAB declined to issue a blanket rule as to whether “third parties, including fax broadcasters, who are retained to accept opt-out requests” are subject to TCPA liability, and instead noted that the question of whether a third party has sufficient involvement in the sending of faxes to create liability is an individualized inquiry.

In a second declaratory ruling, CGAB ruled that a company that responded to job postings requesting faxed resumes with summary information about job candidates had sent fax advertisements subject to the Commission’s TCPA regulations.  The company in question, which had filed a petition for declaratory ruling with the Commission, maintains a web site where, for a fee, subscribers can access and view resumes of job seekers.  The company had faxed “summary” resumes to another firm that had requested submission of resumes by fax on Craigslist.

CGAB based its decision on several significant facts:

• the faxes in question were described as “teaser” resumes that contained more information about the petitioner’s services than about the applicants themselves;
• the information about the petitioner on the faxes was not merely incidental; and
• the recipient had included disclaimers in its ad requesting that resumes be sent only by applicants themselves, not by recruiting services.

On these facts, the Bureau found that the faxes were unsolicited advertisements within the scope of the TCPA.  CGAB declined the petitioner’s request for a ruling on the broader question of whether resumes sent by a third party on behalf of a job seeker generally are advertisements under the TCPA.

Finally, in an order, CGAB granted 117 petitions for retroactive waivers of the requirement in the Commission’s rules that all fax advertisements contain TCPA-compliant opt-out notices.  As wepreviously discussed, in the “Anda Order” the FCC had granted a limited number of retroactive waivers for fax advertisements sent with the prior express consent of the recipient but without TCPA-compliant opt-out notices, and invited any similarly-situated fax senders to submit petitions seeking their own waivers.

In the August 28 order, CGAB granted all pending petitions for retroactive waivers, subject to certain significant limitations.  The order clarifies that in any litigation (pending or future), the petitioners will need to establish that they in fact had the prior express consent of the recipient in order to avail themselves of the waiver.  The order also provides that it does not apply to faxes sent by the petitioners after April 30, 2015, the six-month anniversary of the Anda Order.