Privacy & Cybersecurity Law Blog

On December 9, 2019, the Federal Communications Commission (“FCC”) announced that online fax services do not fall under legal prohibitions against junk faxes. In a petition filed in 2017 for declaratory judgement brought by AmeriFactors Financial Group, LLC pursuant to the Telephone Consumer Protection Act (“TCPA”) and the Junk Fax Protection Act  (“JFPA”), the petitioner sought clarification regarding the status of online cloud-based fax services.

In a sweeping ruling, the FCC announced its determination that faxes sent to “online fax services” do not qualify as faxes sent to “telephone facsimile machines” under the TCPA and JFPA. The FCC determined “that an online fax service that effectively receives faxes ‘sent as email over the Internet’ and is not itself ‘equipment which has the capacity . . . to transcribe text or images (or both) from an electronic signal received over a regular telephone line onto Paper’ is not a ‘telephone facsimile machine’ and thus falls outside the scope of the statutory prohibition.” Accordingly, such messages cannot be the subject of causes of action for junk fax brought pursuant to the TCPA and JFPA. Therefore, companies that send unsolicited faxes via these online messages cannot be subject to junk fax lawsuits unless they also send the messages to traditional fax machines.