FCC: Online Fax Services that Receive Emailed Fax Messages Not Covered by TCPA

On December 9, 2019, the FCC issued a declaratory ruling clarifying that an online fax service that effectively receives fax messages sent as emails and is not itself “equipment which has the capacity . . . to transcribe text or images (or both) from an electronic signal received over a regular telephone line onto paper” is not covered under the TCPA because, according to the FCC, it is not a telephone facsimile machine.

The TCPA, in relevant part, generally prohibits a person from using a telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement.  Under the TCPA, a “telephone facsimile 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.”

In support of their ruling, the FCC noted that an online fax service cannot itself print faxes.  Users must connect their own equipment in order to print the faxes.  As such, the FCC stated that an online fax service is not “equipment which has the capacity . . . to transcribe text or images [  ] onto paper.”  The FCC also pointed out that faxes received by an online fax service as electronic messages are effectively emails and, under the FCC’s precedent, “faxes ‘sent as emails over the Internet’ are not subject to the TCPA.”