October 31, 2020

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FCC Reconfirms that Document Transmitted/Acquired as Digital Electronic File is not a TCPA-Lined Facsimile

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Past 12 months, in the Amerifactors Declaratory Ruling, the Federal Communications Commission’s (FCC) Bureau on Consumer and Governmental Affairs (Bureau) ruled that “an on the net fax company that properly receives faxes ‘sent as e-mail over the Internet’ and is not alone ‘equipment which has the potential . . . to transcribe text or visuals (or both equally) from an electronic signal gained over a common telephone line onto paper’ is not a ‘telephone facsimile machine’ and thus falls outdoors the scope” of the Telephone Customer Security Act’s prohibition on unsolicited fax advertisements.

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At the time, there was also pending with the agency a Petition submitted in 2015 by Joseph T. Ryerson & Son, Inc. (Ryerson) asking the FCC to explain that, amid other issues, “messages that are initiated and acquired in digital variety are not included by the TCPA” due to the fact “such transmissions are most closely analogous to an e-mail than a standard fax.” On September 4, the Bureau, finding that “Ryerson’s technology is identical to the technology” it had addressed in Amerifactors, granted the Ryerson request “because the petitioner did not send an unsolicited ad to a telephone facsimile device less than the TCPA.”

Ryerson was the defendant in a lawsuit by one of its consumers, Connector Castings, Inc., professing a TCPA violation. The petitioner spelled out to the FCC the three-step transmission procedure as follows: “(1) Ryerson staff uploaded the electronic file to [a Web Portal managed and owned by an unaffiliated third-party provider of communications tools] (2) the 3rd bash transmitted the Ryerson electronic file to Connector’s RingCentral [email protected] account and (3) the Ryerson file was been given by Connector from its Business [email protected] account as an email file.”

The Bureau reviewed its rationale in Amerifactors and concluded that “[a]s in Amerifactors, the document in this article, which was been given by Connector’s Business [email protected] on line company, was ‘effectively an email’ despatched over the Online by the 3rd-occasion support and not covered by the TCPA.” Further, “an on the internet support can not itself print a fax and therefore is ‘plainly not ‘equipment which has the ability . . . to transcribe textual content or visuals (or both) from digital sign obtained around a normal telephone line on to paper and as a result does not fulfill the statutory definition of a ‘telephone facsimile equipment.’”

The Bureau also distinguished the Ryerson scenario from an “efax”, which it had dealt with in its 2015 Westfax Declaratory Ruling. That ruling distinguished faxes that commenced as faxes from those people that did not and the “TCPA applies only to paperwork that begin as faxes.”

The Bureau disagreed with commenters who argued that the TCPA should be used to “protect shoppers from transmissions converted to email.”  Unpersuaded, the Bureau again repeated, “the TCPA does not apply to documents that are sent as e-mail in excess of the web and obtained as e mail.” Also, the fact that they could possibly finally be despatched to a laptop or computer that could print them out did not adjust the examination. “Virtually all email could be accessed by computers with printing abilities however e-mail do not implicate the buyer harms that are the TCPA’s concentrate on, these types of as automated printing.”

The Declaratory Ruling turned successful upon its September 4, 2020 release. It really should be read through as confined to the specifics on which the Bureau primarily based its action. As the Bureau observed – [w]e are basing our dedication solely on the information in the record….”

Editor’s note: This post is offered as a result of a partnership concerning insideARM and Squire Patton Boggs LLP, which supplies a regular stream of well timed, insightful and entertaining usually takes on TCPAWorld.com of the at any time-evolving, in no way-a-boring-moment Telephone Client Security Act. Squire Patton Boggs LLP—and all insideARM articles—are safeguarded by copyright. All legal rights are reserved. 

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