FCC Takes Narrow View on Informational Fax Exception Under TCPA


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January 2017 TCPA Compliance Monitoring Report

Last month, the Federal Communications Commission’s (“Commission”) Consumer and Governmental Affairs Bureau (“CGB”) denied a Petition filed by Kohll’s Pharmacy & Homecare, Inc., (“Kohll’s”) which sought an exemption from the Telephone Consumer Protection Act (“TCPA”).  In the Petition, which we have previously written about, the Commission was asked to find that faxes sent by Kohll’s discussing the costs to businesses of sick workers and how to contact Kohll’s about setting up office flu shots were not advertisements, but instead were informational in nature.  Were the faxes deemed to be advertisements, they would be considered unsolicited fax advertisements, which are prohibited under the TCPA.  Alternatively, Kohll’s argued that the Commission should extend its TCPA exemption for certain healthcare calls to Kohll’s faxes.  CGB also dismissed a waiver request made by Kohll’s.

In denying Kohll’s argument that its flu shot faxes were not advertisements, CGB found that the faxes did not fall within the Commission’s definition of “non-advertising, informational” faxes.  An informational fax may not advertise “the commercial availability or quality of any property, goods, or service.”  CGB pointed to the prominent appearance of the price Kohll’s offered per vaccination as an indicator that the faxes did advertise the commercial availability of Kohll’s services.  Further, CGB said the bold, highlighted print of “Corporate Flu Shots” and the use of “only” as a modifier to the price listed on the faxes reinforced its finding that “the fax[es are]…not just to convey neutral facts, but rather the purpose is to encourage sales.”

CGB rejected the possibility that the advertising language was de minimis.  While the Commission has held that a corporate logo on a faxed informational newsletter does not make the newsletter an advertisement, CGB found that the amount of space devoted to advertising on Kohll’s flu shot faxes dwarfed the “informational” portions of the communications.  Even assuming text describing how much sick workers cost business in lost productivity was informational, CGB determined the faxes were not informational communications because of the majority of space on the faxes dedicated to advertising language and the fact that “informational” parts of the faxes were followed immediately by calls to action.

Finally, CGB considered the purpose of the faxes.  While Kohll’s maintained that the faxes delivered healthcare messages, CGB decided that economic concerns were driving Kohll’s actions.  For example, Kohll’s obtained the list of numbers it called from a marketing company, internal emails indicated that Kohll’s referred to the faxes as “fax advertisements,” and internal emails indicated that Kohll’s was “ready and waiting for the phone to ring” in response to the flu shot faxes.

The ability for a company to send informational faxes without running afoul of the TCPA offers allows a business to maintain contact with its customers.  However, it is critical that a business understand the limits of informational faxes prior to sending them out.  As the Kohll’s decision makes clear, informational faxes must serve the primary purpose of disseminating information.  Moreover, such faxes cannot highlight the commercial availability or quality of a company’s property, goods, or services, and references to the business sending the fax should be minimized so as not to take away from the informational focus of the fax.

In addition to analyzing whether Kohll’s flu shot faxes were advertisements, CGB considered and rejected several other arguments put forward by Kohll’s.  While the Commission has exempted certain healthcare calls to residential lines from the TCPA, CGB found that the Commission does not have the same authority under the TCPA to exempt faxes sent as unsolicited advertisements.  CGB also denied Kohll’s request for a waiver of the TCPA’s unsolicited fax advertisement prohibition, finding that Kohll’s failed to demonstrate any special circumstances supporting deviation from the general rule or to show the public interest would be better served by a waiver than would application of the rule.

If you have any questions about the TCPA’s fax advertising regulations or application of the TCPA and the Commission’s implementing rules in general, please contact Seth Williams at slw@commlawgroup.com, Jane Wagner at jlw@commlawgroup.com, or Nate Hardy at njh@commlawgroup.com.

ATTORNEY ADVERTISING DISCLAIMER: This information may be considered advertising in some jurisdictions under the applicable law and ethical rules. The determination of the need for legal services and the choice of a lawyer are extremely important decisions and should not be based solely upon advertisements or self-proclaimed expertise. No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers

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