Efaxes might be covered under TCPA | Shutterstock

WASHINGTON (Legal Newsline) — With ever-changing technologies, companies are constantly looking for new ways to reach consumers but are also interested in protecting themselves from lawsuits.

Recently, efaxes have become a hot button issue on whether they are covered by the Telephone Consumer Protection Act (TCPA), which was enacted by Congress in 1991 to protect consumer privacy and public safety from unwanted phone calls and faxes. 

“If you look at the TCPA and its legislative history, the concern at the time was tying up phone lines, using up ink and paper, actual tangible resources,” Esteban Morales - an associate with Mintz, Levon, Cohn, Ferris, Glovsky and Popeo - told Legal Newsline.

Then in 2005, Congress passed the Junk Fax Protection Act (JFPA) to define and codify established business relationships and force fax senders to add an “opt-out of future faxes” option for the receivers.

In 2009, Westfax, a company that transmits faxes on behalf of other companies, filed a petition to the Federal Communications Commission (FCC) to get clarification on TCPA and JFPA. Specifically, the company was wondering whether an efax counted as a fax, email or both.

In the decision, the FCC found that efaxes are covered under TCPA stating, “The TCPA and the commission’s rules make it unlawful for any person to use any telephone fax machine, computer, or other device to send an unsolicited advertisement to a telephone fax machine unless there is an EBR between the sender and recipient, the sender has obtained the recipient’s fax number through an acceptable method, and the sender provides certain notices on the fax transmission.”

The exception to the ruling is when efaxes are sent as an attachment in an email.

In 2015, Joseph T. Ryerson & Son filed a petition to the FCC, claiming efaxes that are sent and received digitally are more closely related to emails, not faxes, and shouldn’t be covered by the TCPA. The petition also claims the ruling violates the First Amendment.

“The TCPA is a content-based restriction on speech. Regulations that distinguish between speech by its ‘subject matter’ or ‘by its function or purpose’ are content-based ‘and, therefore, are subject to strict scrutiny,’” the petition stated.

Morales agreed that efaxes should not be covered under TCPA - “It’s difficult to explain why someone who has received an efax has suffered any harm and wouldn’t be harmed by receiving any other email.”

The argument might be that companies may be losing productivity and money because employees are scrubbing through additional emails.

Morales said that hardly any time is lost going through emails and it’s difficult to track the time that is spent. “Time isn’t a tangible resource,” Morales said.

The Ryerson petition is still pending, leaving some companies in limbo.

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