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FCC Releases Waiver Order and Two Declaratory Rulings on TCPA Fax Rules

Greg Oshel

28 August 2015
Today the Federal Communications Commission (“FCC”) released three Orders relating to the fax requirements under the Telephone Consumer Protection Act (the “TCPA”).

Under the TCPA, it is unlawful for a person to use a fax machine, computer, or other device to send an unsolicited advertisement to a telephone fax machine unless there is an established business relationship between the sender and recipient, the sender has obtained the recipient’s fax number through an acceptable method, and the sender provides certain opt-out notice language in the fax transmission.  Parties may also send faxes with the “prior express invitation or permission of the recipient,” subject to certain opt-out notice requirements.

In the three items released today, the FCC granted 117 retroactive waivers to the fax opt-out notice requirement, and issued Declaratory Rulings in response to a petition from Westfax, Inc. relating to efaxes, and from iHire, LLC relating to faxes sent in response to job postings.

FCC Grants Retroactive Waivers to Fax Opt-Out Notice Requirement Under the TCPA

The FCC today granted retroactive waivers of the opt-out requirement for faxes sent prior to April 30, 2015 to 117 petitioners due to previous uncertainty as to whether the FCC’s opt-out notice requirement applied to faxes sent with recipient consent.

The FCC previously found that a footnote in the order implementing the opt-out notice requirement caused confusion regarding the applicability of this requirement, and it granted retroactive waivers to petitioners who sent fax advertisements to recipients who provided prior express consent. The FCC explained that similarly situated parties could seek similar waivers. The initial waivers, as well as the waivers issued today do not extend to faxes sent after April 30, 2015, so even entities that received a waiver are required to be in compliance with the rule today.

The FCC explained that it will not conduct a factual analysis as to whether each petitioner in fact obtained consent – it will leave that a question for triers of fact in private litigation – and assumed for the purposes of the waivers that consent was obtained.

In this Order, the FCC also denied the Petition for Declaratory Ruling of Bijora, Inc., which sought clarification that text messages do not require opt-out notices pursuant to the fax opt-out notice requirement. The FCC said the plain language of the rule clearly applies to fax advertisements, and does not apply to text messages, and denied the petition.

FCC Clarifies that Efaxes are Subject to the TCPA

The FCC released a Declaratory Ruling in response to a petition from Westfax seeking clarification of several questions relating to facsimile messages sent as traditional fax messages and converted to e-mails, or “efaxes.” The FCC clarified that “efaxes” that are submitted via a conventional fax machine are subject to the TCPA, and consumers have the same protections from unwanted efaxes of this type as from unwanted conventional faxes.

The FCC clarified that the receipt of the fax message by a computer via e-mail meets the statutory requirements under the TCPA for a fax message, and is thus subject to the TCPA. Further, the FCC clarified that entities that convert faxes to e-mails are not the “recipients” of such faxes under the TCPA because they are not the intended audience of the fax.

The FCC noted that fax messages that begin as e-mails – where the fax is attached to an e-mail message – are not subject to the TCPA’s fax restrictions. The FCC also declined to determine at what point a fax broadcaster is “sufficiently involved in fax advertising to be liable for TCPA violations” or to establish a “safe harbor” opt-out notice language.

FCC Clarifies that Faxes Promoting Job Placement Services are Advertisements

The FCC released a Declaratory Ruling clarifying that faxes promoting a business’ job placement services are “advertisements” under the TCPA in response to a Petition for Declaratory Ruling from iHire, LLC. In response to job postings, iHire submits messages to employers with summary resumes, as well as information about iHire’s services, in response to job postings, and sought clarification that such fax messages are not advertisements under the TCPA.

In the Declaratory Ruling, the FCC emphasized that incidental advertisements in a communication (such as in a newsletter faxed to a recipient) or communications containing a de minimis amount of advertising information (i.e. a company logo on an account statement) do not convert an entire communication into an advertisement. In making the determination that a communication is an advertisement, the FCC will consider the amount of space devoted to advertising compared to the amount of space utilized for information, as well as the “primary purpose of the communication.”

In this case, the FCC stated that iHire’s faxes aimed to generate enough interest in job candidates to induce employers to visit iHire’s website and purchase access to full resumes and other iHire paid services. The FCC explained that because two thirds of the printed lines in the iHire faxes encouraged recipients to visit iHire’s website, and the primary purpose of the faxes was advertising, these faxes are advertisements under the TCPA.

Greg Oshel

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