October 31, 2020

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Transmitted Digital Electronic File Is Not a TCPA-Covered Facsimile

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Last year, in the Amerifactors Declaratory Ruling, the Federal Communications Commission’s (FCC) Bureau on Customer and Governmental Affairs (Bureau) ruled that “an on line fax company that correctly receives faxes ‘sent as e mail more than the Internet’ and is not alone ‘equipment which has the capacity . . . to transcribe text or images (or both of those) from an electronic signal been given about a frequent phone line onto paper’ is not a ‘telephone facsimile machine’ and therefore falls outdoors the scope” of the Phone Customer Protection Act’s prohibition on unsolicited fax commercials.

At the time, there was also pending with the company a Petition submitted in 2015 by Joseph T. Ryerson & Son, Inc. (Ryerson) inquiring the FCC to make clear that, between other issues, “messages that are initiated and obtained in digital type are not covered by the TCPA” for the reason that “such transmissions are most closely analogous to an electronic mail than a regular fax.” On September 4, the Bureau, obtaining that “Ryerson’s technological know-how is similar to the technology” it had addressed in Amerifactors, granted the Ryerson ask for “because the petitioner did not send out an unsolicited ad to a telephone facsimile device beneath the TCPA.”

Ryerson was the defendant in a lawsuit by one particular of its shoppers, Connector Castings, Inc., claiming a TCPA violation. The petitioner spelled out to the FCC the a few phase transmission approach as follows: “(1) Ryerson worker uploaded the digital file to [a Web Portal managed and owned by an unaffiliated third party provider of communications tools] (2) the third party transmitted the Ryerson electronic file to Connector’s RingCentral [email protected] account and (3) the Ryerson file was received by Connector from its [email protected] account as an e mail file.”

The Bureau reviewed its rationale in Amerifactors and concluded that “[a]s in Amerifactors, the doc here, which was obtained by Connector’s Business [email protected] on line services, was ‘effectively an email’ despatched over the Net by the 3rd-get together services and not coated by the TCPA.” Additional, “an on-line support simply cannot alone print a fax and hence is ‘plainly not ‘equipment which has the capacity . . . to transcribe text or images (or both of those) from electronic sign received more than a normal telephone line onto paper and hence does not satisfy the statutory definition of a ‘telephone facsimile device.’”

The Bureau also distinguished the Ryerson scenario from an “efax”, which it experienced addressed in its 2015 Westfax Declaratory Ruling (https://www.fcc.gov/edocs/look for-success?t=fast&fccdaNo=15-977). That ruling distinguished faxes that started as faxes from people that did not and the “TCPA applies only to files that get started as faxes.”

The Bureau disagreed with commenters who argued that the TCPA really should be applied to “protect people from transmissions transformed to e-mail.”  Unpersuaded, the Bureau yet again recurring “the TCPA does not use to files that are sent as e mail over the world wide web and acquired as electronic mail.” Moreover, the point that they might finally be sent to a personal computer that could print them out did not adjust the assessment. “Virtually all e mail could be accessed by desktops with printing capabilities but e-mails do not implicate the buyer harms that are the TCPA’s concentrate on, this sort of as automatic printing.”

The Declaratory Ruling became productive upon its September 4, 2020 launch. It should be examine as confined to the facts on which the Bureau centered its motion. As the Bureau observed – [w]e are basing our dedication exclusively on the facts in the record….”


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