Interesting FCC TCPA Declaratory Ruling

On August 28, 2015, the FCC released a Declaratory Ruling on a petition filed by Westfax - a company that is hired by others to send faxes.  The most notable part of the ruling - which many other sources have already written on - is that the FCC concludes that efaxes - which are delivered to email accounts and not fax machines--are subject to the TCPA's prohibitions on faxed advertisements.  But there are several other notable aspects to this Ruling:

• The FCC concludes that a fax recipient (who is entitled to sue under the TCPA) “is the consumer for whom the fax’s content is intended and to whom the fax’s content is sent by dialing that consumer’s fax number."  That makes sense.  But it's notable because in its July 10, 2015 Declaratory Ruling & Order on other aspects of the TCPA, the FCC rejected in the context of calls to wireless numbers the "intended recipient" interpretation it adopts here for fax. This shows just how arbitrary the July 10 ruling is in concluding that “called party” is not the intended recipient for whom the call’s content is intended but is instead the current subscriber or regular user of the phone number at the time of the call.
• Westfax had asked the FCC to provide "safe harbor" language for fax opt-out notices that would allow parties sending faxes to know precisely the language they needed to include to comply with the FCC's opt out notice disclosure regulations.  The FCC declines to do so, which some people might view as a bad outcome, but the reasoning is actually helpful.  The FCC says that by not prescribing specific language, it is allowing fax senders the flexibility to comply with the FCC's rules using language of their choosing.  This will help companies defending TCPA claims based on allegations that specific opt out language (or in the context of obtaining prior express written consent for marketing calls/texts to wireless numbers, specific disclosure language) is required.
• Westfax asked whether a fax broadcaster (a category of  intermediary that the FCC previously said  is only liable under the TCPA for violations of the faxed ad prohibitions if it has a “high level of involvement” in the sending of the faxes) becomes sufficiently involved to create liability if it provides the required opt language to entities using its services.  The FCC declined to reach the issue finding the record insufficient.  It reiterated that a determination of whether the fax broadcaster was so involved as to be held legally responsible for any violations is fact specific.
• The petition was filed in 2009.  It took the FCC six years to decide and issue a short 16 paragraph ruling.  That's far too long!

Here's a link to the Ruling:

https://www.scribd.com/doc/277500183/FCC-Efax-Declaratory-Ruling