"eFaxes" Now Governed by Telephone Consumer Protection Act

George Hancock Jr.

Last Updated: October 1st, 2019

You may know of the online fax company called eFax, but did you know the name is also communications industry jargon meaning "a document sent as a conventional fax and then converted to and delivered to a consumer as an electronic mail attachment?" It's true, and the term "eFax" was an important part of an FCC decision last week. Since that definition was agreed upon, legislators have decided that eFax (the company) and competitors like Nextiva and FaxZero will be held responsible if they overstep any boundaries laid out by the Telephone Consumer Protection Act (TCPA). The same applies to anyone sending faxes using those services.

The TCPA and the Junk Fax Protection Act, which amends the former document, prohibit unsolicited advertisements transmitted by fax and other machines. Last friday, the FCC determined the prohibition applies to anyone "sending an unsolicited advertisement to a computer attached to a fax server or modem."

An important question for eFax and competitors is whether they can be held accountable for infractions against the TCPA. To answer that question, the FCC  said they can be if they "demonstrate a high degree of involvement in, or actual notice of, the unlawful activity." That answer came after a clarification of the term "fax broadcaster," which is an entity that delivers faxes on behalf of another person for a fee, such as eFax. Therefore, any fax broadcasters that share ad profits or other benefits with senders is affected. Although, the FCC hasn't commented on such an arrangement specifically.

In addition, fax senders must provide a clear notice, to all recipients, that they may opt out of all future fax transmissions from the sender. Much like email communications recipients, fax recipients should be notified if advertisements will be sent to them. At that point, they should be able to opt out.




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