Not that a lot of collectors are sending faxes to try and collect, but it is worth noting that the Federal Communications Commission earlier this week announced that faxes sent to an online fax service are not subject to the provisions of the Telephone Consumer Protection Act.
The FCC’s Consumer and Governmental Affairs Bureau issued a declaratory ruling that exempts what are known as e-faxes from the TCPA, which will deal a blow to plaintiffs filing TCPA class-action lawsuits. Previously, all faxes were subject to the TCPA. This, according to one law firm, made all class actions certifiable “because injury to the consumer no longer mattered; all that mattered was that an unsolicited facsimile was sent.”
However, a petition filed by Amerifactors Financial Group LLC pointed out that the language of the TCPA made it clear that Congress never intended for faxes sent to equipment other than a telephone fax machine to be subject to the law. The company filed its petition in 2017 after it was sued for violating the TCPA.
The original intent was to prohibit sending junk faxes that would be immediately transmitted and printed out by the machine receiving the fax, thereby using paper and ink. Online fax services, however, store transmissions until the user determines whether to print out the fax or not. Thus, online faxes do not pose the same harms as traditional faxes, the FCC determined.
Now, an individualized determination will need to be made to determine how a plaintiff received a fax transmission, which will help companies defending themselves against TCPA class action lawsuits.