FCC Drops Message That Ringless Voicemails Are Subject to TCPA

December 5, 2022

On Nov. 21, 2022, the Federal Communications Commission issued a declaratory ruling and order finding that “ringless voicemails” to wireless phones are “calls” made using an artificial or prerecorded voice. Such calls, therefore, are subject to the Telephone Consumer Protection Act (TCPA), and callers must obtain consent before delivering such messages.

Ringless voicemail technology allows a caller to leave a voicemail message that does not cause the consumer’s phone to ring. The vendor places a call from its landline to the landline of the cellular provider’s voicemail server system, using a data channel rather than a voice channel, to directly drop the voicemail on the customer’s voicemail.

Ringless voicemail technology has been in use for several years. Vendors of ringless technology marketed the product as a loophole to the TCPA’s prior express consent requirements because it does not place a telephone call over the wireless network to the wireless telephone. However, the technology never gained significant traction with telemarketers due to concern that courts and the FCC would disagree with the vendors’ promises that the technology fell outside of the TCPA.

Moreover, ringless voicemails were unpopular with the public, as evidenced by public comments to ringless voicemail vendor All About the Message, LLC’s petition seeking an affirmative finding that the technology is not subject to the TCPA. According to the declaratory ruling, when the FCC Consumer and Governmental Affairs Bureau sought public comment, there were only three comments supporting the petition (from three national organizations) and thousands of comments opposing it. The vendor then withdrew its petition, but the FCC moved forward with its evaluation of the topic, resulting in the declaratory ruling.

In its declaratory ruling, the FCC found that ringless voicemails were “calls” in much the same way that it previously found text messages, short message services and internet-to-phone text messages were “calls” subject to the TCPA. The finding is based on the plain language of the TCPA, which prohibits a caller from making any call to a telephone number assigned to a cellular telephone service. The FCC reiterated that when the wireless phone number is used to effectuate a call as a necessary and unique identifier for reaching the consumer, it qualifies as a call made to any telephone number assigned to a wireless service, regardless of the technology used to deliver the call. Quoting its 2015 TCPA declaratory ruling and order, the FCC stated that to find otherwise “would elevate form over substance, and thwart Congressional intent that evolving technologies not deprive mobile consumers of the TCPA’s protections[.]”

Despite court rulings over the past few years limiting the TCPA’s scope, the reach of the statute remains broad. Companies should not rely on a vendor’s representation that its technology falls outside of the TCPA’s reach and should always seek an independent assessment by counsel prior to adopting new technology to contact consumers.

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