The Federal Communications Commission ruled earlier this week that unsolicited advertisements sent by fax to online fax services are not prohibited by the Telephone Consumer Protection Act.
About two years ago, a marketer petitioned the FCC asking for a ruling about whether unsolicited fax advertisements that are sent to "online fax services" violated the TCPA. For purposes of the petition, an "online fax service" was defined as "a cloud-based service consisting of a fax server or similar device that is used to send or receive documents, images and/or electronic files in digital format over telecommunications facilities that allows users to “access ‘faxes’ the same way that they do email: by logging into a server over the Internet or by receiving a pdf attachment as an email."
The TCPA prohibits the sending of unsolicited advertisements to a “telephone facsimile machine," which is defined as “equipment which has the capacity . . . to transcribe text or images (or both) from an electronic signal received over a regular telephone line onto paper.”
Here, the FCC ruled that sending an unsolicited ad by fax to an online fax service doesn't violate the TCPA, since the online fax service isn't "equipment" which has the capacity to print the message onto paper. The FCC noted that "faxes sent to online fax services do not cause the specific harms to consumers Congress sought to address in the TCPA," which were to prevent advertisers from shifting some of the cost of the advertising to consumers and to prevent advertisers from interfering with other communications that consumers were receiving by fax.
"Faxes sent to online fax services use paper and ink only when the recipient chooses to print it using their own separately provided equipment"