Federal Communications Commission DA 19-1247
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Amerifactors Financial Group, LLC Petition for
Expedited Declaratory Ruling
Rules and Regulations Implementing the
Telephone Consumer Protection Act of 1991
Junk Fax Protection Act of 2005
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CG Docket No. 02-278
CG Docket No. 05-338
DECLARATORY RULING
Adopted: December 9, 2019 Released: December 9, 2019
By the Chief, Consumer and Governmental Affairs Bureau:
I. INTRODUCTION
1. The Telephone Consumer Protection Act (TCPA), as amended by the Junk Fax
Protection Act (JFPA), prohibits any person from sending an unsolicited advertisement to a “telephone
facsimile machine.”
1
In relevant part, a “telephone facsimile machine” is defined as “equipment which
has the capacity . . . to transcribe text or images (or both) from an electronic signal received over a regular
telephone line onto paper.”
2
Construing these terms in 2003, the Commission has made clear that the
prohibition does not extend to facsimile messages “sent as email over the Internet.”
3
2. In 2017, Amerifactors filed a petition for declaratory ruling asking the Commission to
clarify that faxes sent to “online fax services” are not faxes sent to “telephone facsimile machines.”
4
An
online fax service is “a cloud-based service consisting of a fax server or similar device that is used to send
or receive documents, images and/or electronic files in digital format over telecommunications facilities”
5
that allows users to “access ‘faxes’ the same way that they do email: by logging into a server over the
Internet or by receiving a pdf attachment [as] an email.”
6
3. By this declaratory ruling, we make clear 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
1
47 U.S.C. § 227(b)(1)(C).
2
Id. § 227(a)(3).
3
Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket 02-278, 18 FCC
Rcd 14014, 14133, para. 200 (2003) (2003 TCPA Order).
4
See Petition for Expedited Declaratory Ruling of Amerifactors Financial Group, LLC, CG Docket Nos. 02-278,
05-338, at 2 (filed July 13, 2017) (Petition).
5
Id. at 2 n.4.
6
Id. at 1.
Federal Communications Commission DA 19-1247
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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.
II. BACKGROUND
4. In relevant part, the TCPA prohibits the use of “any telephone facsimile machine,
computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement.”
7
The
TCPA defines the term “telephone facsimile machine” as “equipment which has the capacity (A) to
transcribe text or images, or both, from paper into an electronic signal and to transmit that signal over a
regular telephone line, or (B) to transcribe text or images (or both) from an electronic signal received over
a regular telephone line onto paper.”
8
5. In 2003, the Commission made clear that the TCPA’s prohibition does not extend to
facsimile messages “sent as email over the Internet.”
9
In doing so, the Commission made clear that where
the equipment itself could transcribe a fax onto paper—such as a personal computer attached to printer
and modem—it would remain within the scope of the statute.
10
The Consumer and Governmental Affairs
Bureau reiterated this finding in the Westfax Declaratory Ruling, finding that the “efaxes” at issue in that
case were received by equipment that had “the capacity to ‘transcribe text or images (or both) from an
electronic signal received over a telephone line onto paper.’”
11
6. In 2017, Amerifactors filed the present petition for declaratory ruling regarding “online
fax services.”
12
Amerifactors argues that (1) online fax services do not fit within the plain meaning of the
TCPA’s prohibition on conventional faxes; (2) online faxes do not result in the type of harm the Congress
sought to avoid in the TCPA; (3) a declaratory ruling here would be a first step toward curbing abusive
litigation practices; and (4) applying the TCPA to faxes received on a device other than a telephone
facsimile machine would be an impermissible restriction on commercial speech in violation of the First
Amendment.
13
7. The Bureau sought comment on Amerifactors’ Petition.
14
Several entities and
individuals filed comments. The majority of commenters support the Petition. In general, these
commenters reiterate the arguments made in the Petition, including that the TCPA’s prohibitions do not
apply to faxes received via an online fax service because that technology does not constitute a telephone
facsimile machine.
15
Five commenters oppose Amerifactors’ petition, one of which is the plaintiff in an
7
47 U.S.C. § 227(b)(1)(C).
8
Id. § 227(a)(3).
9
2003 TCPA Order, 18 FCC Rcd at 14133, para. 200.
10
Id.
11
See Westfax, Inc., CG Docket Nos. 02-278 and 05-338, Declaratory Ruling, 30 FCC Rcd 8620, 8623, para. 9
(CGB 2015) (CGB Westfax Declaratory Ruling).
12
Petition at 2.
13
Id. at 10-19.
14
See Consumer and Governmental Affairs Bureau Seeks Comment on Amerifactors Financial Group, LLC Petition
for Expedited Declaratory Ruling Under the Telephone Consumer Protection Act of 1991, CG Docket Nos. 02-278,
05-338, Public Notice, 32 FCC Rcd 5667 (2017).
15
See, e.g., Amsterdam P&L Comments at 3; Legal & General America Comments at 2-3.
Federal Communications Commission DA 19-1247
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ongoing class action lawsuit against Amerifactors.
16
In general, these commenters argue that faxes sent to
fax servers are subject to the TCPA’s prohibitions, and that the time and resources expended to review
faxes causes harm even with online fax services.
17
In addition, Career Counseling, the plaintiff in the
underlying TCPA litigation against Amerifactors, argues that a declaratory ruling is procedurally
inappropriate in this instance as the Petition raises no controversy or uncertainty to be resolved.
18
III. DISCUSSION
8. Based on the record, including a great deal of information on the nature and operations of
current online fax services, we grant Amerifactors’ request for declaratory ruling. To the extent an
unsolicited facsimile advertisement is sent to a 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,” the language of the TCPA
and our precedent make clear that service is not a “telephone facsimile machine” and is thus outside the
scope of the statutory prohibition. Our clarification is limited to an analysis of online fax services, as
informed by the current record, and does not prejudge whether we would arrive at the same conclusion for
other types of equipment and services.
9. As an initial matter, we find sufficient controversy or uncertainty exists to justify issuing
a declaratory ruling as set out in section 1.2 of our rules.
19
Although Career Counseling notes that
Amerifactors makes no direct claim in its petition that any person received its faxes through an online fax
service, Amerifactors indicated to the court in the underlying litigation that it “believes many, if not the
majority of the alleged faxes at issue” were received by, and thus sent to, an online fax service.
20
In
addition, the issue Amerifactors raises extends beyond the parties involved in the current litigation, as
evidenced by several commenters that support clarification of this issue.
21
10. Turning to the merits, the TCPA’s language demonstrates that Congress did not intend
the statute’s prohibition to apply to faxes sent to equipment other than a telephone facsimile machine.
Specifically, the language of the statute proscribes sending a fax only to a “telephone facsimile
machine.”
22
In contrast, Congress made clear that the proscription applies when such a fax is sent from
other devices as well—specifically, an unsolicited facsimile advertisement can originate on any of three
types of equipment: a “telephone facsimile machine,” a “computer,” or any “other device.”
23
16
See Barry Comments; Biggerstaff Comments; Career Counseling Comments; Shaw Comments; Sutton
Comments; see also Career Counseling, Inc. v. Amerifactors Fin. Group, LLC, No. 16-cv-0313-JMC (D.S.C.)
(stayed pending a Commission decision).
17
See, e.g., Career Counseling Comments at 1-6; Barry Comments at 1-2.
18
See Career Counseling Comments at 8.
19
See 47 CFR § 1.2.
20
Career Counseling Comments at 8, Exh. A (citing Amerifactors Mem. Supp. Mot. Stay at 2-3).
21
See, e.g., ABA Comments at 2; Amsterdam P&L Comments at 1-2; Jefferson Business Comments at 1; Legal &
General Comments at 4.
22
47 U.S.C. § 227(b)(1)(C); see also Petition at 11-12 (citing various cases holding that “where Congress includes
particular language in one section of the statute but omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion”); Amsterdam P&L
Comments at 3; Brinker Comments at 2; Legal & General America Comments at 2-3. Our decision is limited to
online fax services, as described in the current record. We therefore do not address the possibility that personal
computers or other devices might be subject to the TCPA’s protections if they essentially function as “telephone
facsimile machines,” including causing the consumer harms we discuss here.
23
47 U.S.C. § 227(b)(1)(C).
Federal Communications Commission DA 19-1247
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11. Next, we turn to whether an online fax service is a “telephone facsimile machine.” As
described in the record, a fax received by an online fax service as an electronic message is effectively an
email. Under our precedent, faxes “sent as email over the Internet” are not subject to the TCPA.
24
Faxes
sent to online fax services via an attachment that the consumer can delete without printing are effectively
the same as “email sent over the Internet.”
25
Consumers can manage those messages the same way they
manage email by blocking senders or deleting incoming messages without printing them. We also
understand that an online fax service cannot itself print a fax—the user of an online fax service must
connect his or her own equipment in order to do so. As such, an online fax service is plainly not
“equipment which has the capacity . . . to transcribe text or images (or both) from an electronic signal
received over a regular telephone line onto paper.” Accordingly, under the plain terms of the Act, an
online fax service is not a “telephone facsimile machine” and a fax sent to one is not “an unsolicited
facsimile advertisement” prohibited by the TCPA.
12. What is more, we agree with commenters that faxes sent to online fax services do not
cause the specific harms to consumers Congress sought to address in the TCPA.
26
The House Report on
the TCPA makes clear that the facsimile provisions of the statute were intended to curb two specific
harms: “First, [a fax advertisement] shifts some of the costs of advertising from the sender to the
recipient. Second, it occupies the recipient’s facsimile machine so that it is unavailable for legitimate
business messages while processing and printing the junk fax.”
27
The record is clear that faxes sent to
online fax services do not pose these harms and, in fact give consumers tools such as blocking capabilities
to control these costs.
28
Specifically, we find that the advertiser cost-shifting that Congress sought to
prevent, such as the use of a recipient’s paper and ink, is not a factor with online fax services. The House
Report on the TCPA explained in 1991 that fax machines were “designed to accept, process, and print all
messages which arrive over their dedicated lines.”
29
13. By contrast, the record here confirms that online fax services hold inbound faxes in
digital form on a cloud-based server, where the user accesses the document via the online portal or via an
email attachment and has the option to view, delete, or print them as desired.
30
Faxes sent to online fax
services use paper and ink only when the recipient chooses to print it using their own separately provided
equipment. Neither is Congress’ concern about junk faxes occupying the recipient’s fax machine so it is
unavailable for other transmissions an issue with online fax services. These services can handle multiple
simultaneous incoming transmissions and thus receipt of any one fax does not render the service
unavailable for others.
31
In short, online fax services differ in critical ways from the traditional faxes sent
24
See 2003 TCPA Order, 14 FCC Rcd at 14133, para. 200.
25
Id.
26
See Petition at 16-19; ABA Comments at 1-2; Amsterdam P&L Comments at 4; Legal & General America
Comments at 4-5.
27
H.R. Rep. No. 317, 102d Cong., 1
st
Sess. 11 (1991).
28
See Letter from Steven A. Augustino, Counsel for Amerifactors to Marlene H. Dortch, FCC, CG Docket No. 02-
278 (dated Sept. 6, 2019); Amerifactors Reply Comments at 13-14; Petition at Exh. 2 (noting those online fax
services that provide a blocking option). Even where online fax services charge consumers for individual faxes,
providers offer functionalities that enable consumers to manage unwanted messages, including the ability to block
senders or options to purchase “receipt only” packages in which no additional cost is incurred for receipt of
transmissions. See, e.g., Amerifactors Reply Comments at 13-14 (discussing various online fax service plans).
29
H.R. Rep. No. 317, 102d Cong., 1
st
Sess. 11 (1991) (emphasis added).
30
See, e.g., Petition at 13; ABA Comments at 1-2; Legal & General America Comments at 4-5.
31
Petition at 18 (noting that because a fax reaches the user of an online fax service via email there is typically no
occupation of the user’s facilities).
Federal Communications Commission DA 19-1247
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to telephone facsimile machines Congress addressed in the TCPA.
32
These faxes are more accurately
characterized as faxes sent to a “computer” or “other device,” and not a “telephone facsimile machine.”
33
14. We disagree with those commenters who suggest that other consumer inconveniences
necessitate that all computers and devices capable of being sent faxes be deemed telephone facsimile
machines.
34
For one, we see no discretion contained in the statute to expand the meaning of a telephone
facsimile machine beyond its defined scope. For another, the more general harms that such commenters
point to—such as time spent monitoring unwanted faxes stored by online fax services—are more
generalized harms that go beyond the specific harms Congress identified in enacting the TCPA.
35
15. We also disagree with those that suggest this case is governed by the Westfax
Declaratory Ruling. That decision focused on whether the mere conversion of a conventional fax to
email at some point in the transmission chain removed the fax from the TCPA’s reach—and found that it
did not.
36
And based on a limited record, it assumed that the “efax” in question was sent to a computer
with an attached fax modem that had the capacity to print the fax, as required by statute.
37
That decision
did not consider the online fax services that have no such capacity at issue here.
16. Having granted Amerifactors the relief it requests as described above, we decline to
address its other arguments, including the claim that applying the TCPA prohibition to faxes sent to
online fax services would violate the First Amendment.
IV. ORDERING CLAUSES
17. For the reasons stated above, IT IS ORDERED, pursuant to sections 1-4 and 227 of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 151-154, 227, sections 1.2 and 64.1200 of the
Commission’s Rules, 47 CFR §§ 1.2, 64.1200, and the authority delegated in sections 0.141 and 0.361 of
the Commission’s rules, 47 CFR §§ 0.141, 0.361, that the Petition for Expedited Declaratory Ruling filed
by Amerifactors Financial Group, LLC on July 13, 2017, IS GRANTED TO THE EXTENT
DESCRIBED HEREIN.
32
For these reasons, we disagree with those commenters who suggest that granting Amerifactors’ request will result
in consumer harms that Congress intended to protect under the TCPA. See, e.g., Biggerstaff Reply Comments at 9;
Sutton Comments at 1.
33
We agree with Amerifactors that interpreting the TCPA to mean that every “computer” or “other device” is a
telephone facsimile machine, merely because it could be connected to a printer, directly or indirectly, would be
overly broad and result in the kind of impermissibly expansive application of the TCPA that the D.C. Circuit
recently rejected. See Letter from Steven A. Augustino, Counsel for Amerifactors to Marlene H. Dortch, FCC, CG
Docket No. 02-278 (dated Feb. 22, 2019).
34
Career Counseling Comments at 6-8 (noting time spent opening, reviewing and deleting messages); Shaw
Comments at 1 (faxes emailed to the recipient take the recipient’s time); Sutton Comments at 1.
35
See, e.g., CGB Westfax Declaratory Ruling, 30 FCC Rcd at 8624, para. 12; 2003 TCPA Order, 18 FCC Rcd at
14134, para. 202.
36
CGB Westfax Declaratory Ruling, 30 FCC Rcd at 8623-24, para. 10.
37
See id. at 8623, para. 9.
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18. IT IS FURTHER ORDERED that this Declaratory Ruling shall be effective upon release.
FEDERAL COMMUNICATIONS COMMISSION
Patrick Webre
Chief
Consumer and Governmental Affairs Bureau
Federal Communications Commission DA 19-1247
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Appendix
List of Commenters
Commenters Abbreviation
American Bankers Association ABA
Amerifactors Financial Group, LLC Amerifactors
Amsterdam Printing & Litho Amsterdam P&L
Barry, Peter/Barry/Helwig, LLC Berry
Robert Biggerstaff Biggerstaff
Cynthia Brinker Brinker
Career Counseling, Inc. Career Counseling
David Cover Cover
Johnny Daciolas Daciolas
Leslie Delahoya Delahoya
Erika Eaton Eaton
Stephanie Elizabeth Elizabeth
Gary Evans Evans
Michael Friend Friend
Javier Gonzalez Gonzalez
Mark Gregg Gregg
Joe Horner Horner
Kim Jarreau Jarreau
Jefferson Business Council Jefferson Business
Gary Lafountain Lafountain
Legal & General America, Inc. Legal & General America
David Lloyd Lloyd
Derek Mannion Mannion
Christopher Robert Robert
Lalo Robles Robles
John Shaw Shaw
Jason Stephens Stephens
Jimmy Sutton Sutton
Mark Valencia Valencia
Westfax, Inc. Westfax
