More Challenges to the FCC’S TCPA Declaratory Rulings and E-Faxes Covered Under the TCPA

The FCC’s pro-consumer July 10, 2015 Declaratory Ruling and Order creates new and increased TCPA compliance and litigation challenges for businesses. ACA International previously filed a lawsuit seeking judicial review of the ruling and, on August 14, 2015, CodeBroker, LLC filed a similar lawsuit.  Both lawsuits are pending in the United States Court of Appeals for the District of Columbia. ACA International and CodeBroker, LLC ask the Court to vacate various provisions of the July 10, 2015 Declaratory Ruling and Order including:

1. treatment of text messages sent to reassigned wireless telephone numbers;
2. whether prior express consent may be revoked by “any reasonable means”;
3. whether callers need to “seek prior express written consent for each call or text message sent to a wireless number;” and
4. asking the FCC to define “called party” as the intended recipient of the call or text and establish a viable safe harbor for text messages sent to reassigned numbers.

On August 28, 2015, the FCC issued another declaratory ruling based on a 2009 petition from Westfax, Inc. stating that documents converted to an e-mail or attachment between a faxer and recipient (E-Faxes) are subject to the same consumer protections as regular faxes under the TCPA. In sum, unsolicited communications that begin as faxes are subject to the TCPA. Moreover, the means of transmission is the determining factor because it makes no difference if the fax is converted to an electronic format after the faxer sends the document to the recipient. The ruling also precludes faxes that are sent as an e-mail from the beginning, rather than subsequently converted to electronic format. It should be noted that the FCC did not provide a safe harbor opt-out provision for e-faxes specifically stating that, “fax opt-out notice requirements have been in place for more than seven years and we have no evidence that other fax senders have struggled with finding language that would satisfy those requirements.”

Expect more lawsuits seeking judicial review of certain aspects of the rulings to be filed in the future. However, in the interim, businesses should evaluate how to comply with the FCC’s new interpretations of the TCPA.