On September 25, 2009, Westfax, Inc. filed a petition for clarification as to whether electronic faxes are treated the same as regular faxes under the TCPA. Almost 6 years later, the FCC finally got around to responding by way of an eight page declaratory ruling.
In their ruling the FCC determined that efaxes that are sent as a fax over a telephone line are subject to the TCPA. However, faxes that are sent as an email over the internet are not subject to the TCPA. Thus the issue turns on how the fax was sent, not how it was received. One argument made by the FCC supporting their decision, was that the party sending the fax generally doesn’t know whether a fax will be received by a traditional fax machine, or an online fax account.
Under the FCC’s ruling, unsolicited efaxes sent over a telephone line must meet the same requirements as regular faxes, namely that there must be an established business relationship between the sender and the recipient, the sender needs to have obtained the recipient’s fax number through an acceptable method, and the sender must provide certain notices on the fax transmission.