FCC Issues TCPA Fax Rule Declaratory Rulings

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By Jimmy H. Koo

Sept. 1 — The Federal Communications Commission Aug. 28 issued two declaratory rulings clarifying that electronic faxes are subject to the Telephone Consumer Protection Act and that faxes promoting a business's job placement services are advertisements even when they respond to a job posting that requested faxed resumes.

The commission said that the TCPA, 47 U.S.C. § 227, applies to a fax that is sent as a fax over a telephone line to a device that meets the statutory definition of a “telephone facsimile machine,” including a computer that receives the electronic fax via e-mail.

As for faxes promoting job placement services, the FCC said that although an “incidental advertisement” in an informational fax such as a newsletter doesn't convert the entire communication into an advertisement, the commission will consider the “primary purpose” of the communication and the amount of space used for advertising to determine whether a fax is an advertisement.

All Faxed Ads Must Have Opt-Out Notice

The same day, the FCC also granted 117 retroactive waivers to the fax opt-out notice requirement under the Telephone Consumer Protection Act and the Junk Fax Prevention Act, which amended the fax advertising provisions of the TCPA (In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, FCC, Nos. 02-278; 05-338, 8/28/15).

The Aug. 28 order granted waivers for faxes sent before April 30, 2015, due to uncertainty as to whether the opt-out notice requirement applied to faxes sent with recipient consent.

On April 5, 2006, the FCC issued an order adopting final regulations regarding commercial faxes, including a requirement that faxes include an opt-out notice that gives recipients a cost-free way to decline all future faxes from the sender. However, the order contained a footnote stating that “the opt-out notice requirement only applies to communications that constitute unsolicited advertisements.”

Subsequently, an Oct. 30, 2014, FCC order clarified that all faxed advertisements must include a prominently displayed notice enabling recipients to opt out from future ads. The order provided relief to parties that sent solicited fax ads in the past but were unsure whether the opt-out notice requirement applied to them.

Specifically, the order granted such parties until April 30, 2015, to comply with the opt-out notice requirement and allowed them to apply for retroactive relief—such as the ones granted by the Aug. 28 order.

Petitions for Declaratory Ruling

Further, the commission is seeking comments on two petitions for declaratory ruling.

The Aug. 31 request concerns a petition filed by Anthem Inc. requesting the FCC to “exempt from the TCPA’s restrictions non-telemarketing health care-related calls and text messages aimed at improving health outcomes from healthcare plans or providers to consumers with whom they have an existing relationship.” Comments are due Sept. 30, and reply comments are due Oct. 15.

The FCC in June adopted a declaratory ruling in which it exempted from the TCPA consumer consent requirements certain calls from health-care and drug providers and banks.

The Aug. 28 request concerns a petition seeking retroactive waivers of the opt-out notice requirement for fax advertisements where prior express invitation or permission had allegedly been obtained from the recipient. Comments are due Sept. 11, and reply comments are due Sept. 18.

To contact the reporter on this story: Jimmy H. Koo in Washington at jkoo@bna.com

To contact the editor responsible for this story: Katie W. Johnson at kjohnson@bna.com

The FCC order granting the waivers is available at http://transition.fcc.gov/Daily_Releases/Daily_Business/2015/db0828/DA-15-976A1.pdf.

The declaratory ruling on electronic faxes is available at http://transition.fcc.gov/Daily_Releases/Daily_Business/2015/db0831/DA-15-977A1.pdf.

The declaratory ruling on faxes promoting job placement services is available at http://transition.fcc.gov/Daily_Releases/Daily_Business/2015/db0828/DA-15-978A1.pdf.

The FCC's Anthem Inc. public notice is available at http://transition.fcc.gov/Daily_Releases/Daily_Business/2015/db0831/DA-15-979A1.pdf.

The FCC's opt-out notice public notice is available at http://transition.fcc.gov/Daily_Releases/Daily_Business/2015/db0828/DA-15-972A1.pdf.