Recently, the Federal Communications Commission (“FCC”) issued a ruling stating that electronic faxes (“e-faxes”) are covered by the Telephone Consumer Protection Act (“TCPA”) as well as the Junk Fax Protection Act.
E-faxes are defined as communications that originate as a fax that is converted to an electronic file during transmission and delivered to the recipient as an email attachment. The regulation of faxes originally arose from consumer complaints about the unnecessary expenditure on expensive thermal paper, ink and toner that early fax machines used. While e-faxes do not use paper, ink or toner, the FCC has determined they should be regulated like regular faxes.
The ruling stated that the FCC’s interpretation of the TCPA focused on the sender’s means of transmission, not the recipient’s means of receiving the communication. The FCC also said its decision to apply TCPA regulation to e-faxes was because e-faxes can cause some of the same problems and costs for businesses and consumers that regular faxes do, even if they do not involve the same use of paper, ink and toner.
Documents that originate as email attachments — rather than those converted to email in transmission — are exempt from this ruling.
Earlier this year, the FCC broadened its applicability of the TCPA regarding automatic telephone dialing systems. The new rules include:
‘Do Not Disturb’ Technology Approved — Phone service providers are allowed to provide autodial blocking technology to their customers.
Revocation of Consent — Consumers may revoke their consent to be contacted via phone call or text message in “any reasonable way at any time.”
Reassigned Numbers are Not Loopholes — In circumstances involving a reassigned phone number, a company may only contact the new number holder once before a penalty is assessed. This applies to wireless and landline phones.
Text Messages as Calls – The Commission reaffirmed that consumers are entitled to the same consent-based protections for texts as they are for voice calls to wireless numbers.
Autodialer Prohibitions — Companies are prohibited from using an automatic telephone dialing system to call wireless phones or to leave prerecorded marketing messages on landlines without consent.
Consent — The party being called — not from the intended recipient — must provide the consent to be contacted.
Third-Party Consent — A consumer whose name is in the contact list of an acquaintance’s phone does not consent to receive robocalls from third-party applications downloaded by the acquaintance.
Affirming Definition of Autodialer — The FCC affirmed the TCPA’s definition of autodialer as “any technology with the capacity to dial random or sequential numbers.” The FCC also clarified that any equipment used to send Internet-to-phone texts is an autodialer.
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