The TCPA generally prohibits the transmission of an “unsolicited advertisement” to a “telephone facsimile machine.” 47 U.S.C. § 227(b)(1)(c). But is an “online fax service” a “telephone facsimile machine”? And can a plaintiff state a claim based on faxes that were sent to its “online fax service”? The U.S. District Court for the District of Colorado recently answered both questions in the negative. See Astro Companies, LLC v. Westfax, Inc., et al., No. 1:23-cv-02328 (D. Colo. Feb. 12, 2025).
Plaintiff Astro Companies, LLC (Astro) alleged that it is an online fax service provider that uses a fax server to convert “traditional faxes” into readable formats (such as a PDF), which are then either emailed to the recipient or made available online to be viewed (and potentially printed) at the recipient’s convenience. Astro sued multiple companies, claiming it had received “junk” faxes in violation of the TCPA. Even accepting Astro’s well-pleaded factual allegations as true, the court granted a defendant’s motion to dismiss, found Astro failed to state a claim, and, ultimately, dismissed the action with prejudice.
The court’s analysis turned on whether Astro’s “online fax service” could constitute a “telephone facsimile machine” under the TCPA.
Initially, Astro relied on Lyngaas v. Curaden Ag, 992 F.3d 412 (6th Cir. 2021) (a case we previously discussed here), which held that a fax received by a computer fell within the TCPA’s scope. But the court distinguished Lyngaas because the issue here was not whether certain equipment constituted a “telephone facsimile machine.” Rather, this case presented a different question: whether an online fax service was entitled to protection under the TCPA.
Next, the court conducted a plain reading of the statutory definition for “telephone facsimile machine,” which is “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.” 47 U.S.C. § 227(a)(3). The court reasoned that Astro’s online fax service did not fall within this definition because “the statute specifically contemplates a ‘machine’ that receives and prints faxes and not a service that does so.”
Finally, the court found persuasive guidance in an FCC declaratory ruling, In the Matter of Amerifactors Fin. Grp., LLC, 34 F.C.C. Rcd. 11950 (2019), which had described a fax received by an online fax service as “effectively an email.” This FCC ruling concluded that faxes sent to online fax services did not cause the harms Congress sought to address in the TCPA. The court agreed, noting that the traditional concerns related to unsolicited faxes — delaying the transmission of legitimate messages and shifting ink and paper costs to the recipient — were not implicated with an online fax service. Indeed, a recipient using an online fax service could print a fax at any time — or decide not to print a fax at all.
The Astro Companies decision is a relatively straightforward, but important, case of statutory interpretation. As technological advances continue to expand the various ways in which people can communicate (at least as compared to 1991 when the TCPA was enacted), defendants should not overlook the threshold question of whether the statute even applies in the first instance.
