TCPA Does Not Cover Email Faxes, FCC Rules

The TCPA (Telephone Consumers Protection Act) does not prohibit telemarketers from sending unsolicited fax messages via email, according to a recent ruling by the Federal Communications Commission (FCC). Although traditional fax messages (ones that come through an actual fax machine and are printed out in tangible form) are still regulated under the law, electronic faxes (e-faxes) that are delivered digitally are still fair game – meaning that unsolicited commercial messages faxed to an email address are no longer a cause of action for filing a lawsuit.

The federal Telephone Consumer Protection Act, known by the acronym TCPA, is a set of regulations aimed at protecting consumers from unwanted telephone solicitation calls, texts, and faxes. Consumers who do not give consent to receive these communications can report the violations and file a civil lawsuit.

The FCC’s Rationale

According to the FCC, faxes delivered via email are not subject to TCPA regulations. As long as the faxes are delivered to an email inbox and not to an actual fax machine, companies and individuals who send out commercial advertising messages in this form are not in violation of the TCPA.

In its four-page declaratory ruling, the FCC stated: “Congress did not intend the statute’s prohibition to apply to faxes sent to equipment other than a telephone facsimile machine.” Since there is no cost to the consumer who receives an emailed fax (i.e., paper, ink, and energy), recipients are not harmed in ways that are addressed under the TCPA.

Background of the Ruling

In 2017, a financial services company known as AmeriFactors asked the FCC for clarification on the issue of fax messaging and advertising. As the law is written, the TCPA states that it “shall be unlawful for any person … to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement.”

Under the Junk Fax Protection Act of 2005 (an amendment to the TCPA), a telephone fax machine is defined as “equipment which has the capacity (a) to transcribe text or images, or both, from paper into an electronic signal and to transmit that signal over a regular telephone line, or (b) to transcribe text or images (or both) from an electronic signal received over a regular telephone line onto paper.”

Until the FCC made its ruling, it had included e-faxes, or documents sent out as conventional faxes, then converted into digital form and delivered as an email attachment. Computers were also included because they are able to transcribe text and images from digital or electronic sources.

Implications for TCPA Lawsuits

Prior to December’s ruling, virtually any class action brought over junk faxes could be certified; plaintiffs were not required to show injury, only that the law had been violated. Attorneys for AmeriFactors argued that the FCC’s earlier interpretation disregarded the literal, word-for-word language of the law. Ultimately, the FCC agreed with AmeriFactor’s claim that only actual telephone fax machines were covered by the TCPA. Since online fax services cannot actually print such messages, they are simply stored on a server until the consumer chooses to access them – or ignore and delete them.

The new ruling means that from this point forward, consumers who file a TCPA lawsuit will need to demonstrate that it was received and printed by a standard fax machine in order to prove their cases.

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If you were contacted on your cell phone by a company via an unsolicited text message (text spam) or prerecorded voice message (robocall), you may be eligible for compensation under the Telephone Consumer Protection Act.

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This article is not legal advice. It is presented
for informational purposes only.