FCC Declares that “Ringless Voicemails” are “Calls” that Require Consumer Consent to Avoid TCPA Liability

Author: Thomas Blatchley

On November 21, 2022, the Federal Communications Commission (FCC or Commission) issued a declaratory ruling finding that “ringless voicemails” to wireless telephones require consumer consent because they are “calls” made using an artificial or prerecorded voice, and thus are covered by the federal Telephone Consumer Protection Act, 47 U.S.C. § 227 (TCPA). See FCC 22-85 (CG Dkt. No. 02-278) (Nov. 21, 2022). The FCC ruling is significant because it clarifies that delivery of a ringless voicemail is a form of a robocall covered by the TCPA, and is illegal if the caller did not have the consumer’s prior express consent.

Background

The TCPA, which protects consumers from unwanted robocalls, prohibits making any non-emergency call using an automatic telephone dialing system or an artificial or prerecorded voice to a wireless telephone number without the prior express consent of the called party.

On March 31, 2017, All About the Message, LLC (AATM) filed a petition with FCC seeking a declaration that ringless voicemail (e.g., delivery of a voicemail message directly to a consumer’s cell phone voicemail) is not subject to § 227(b)(1)(A)(iii) of the TCPA and therefore that AATM does not need consumer consent for the messages. AATM argued that its ringless voicemail message is not a “call” and that the TCPA should not apply, claiming that its proprietary software creates a landline session directly to the telephone company’s voicemail server without charge to the subscriber or appearing as a received call on a bill. AATM claimed that the ringless voicemail server, and the process by which the ringless voicemail is deposited on a carrier’s platform, is neither a call made to a mobile telephone number nor a call for which a consumer is charged and, therefore, is an unregulated service.

The FCC received over 8,000 comments and replies on the petition; almost all opposed it. On June 20, 2017, AATM filed a letter seeking withdrawal of the petition.¹ Given the substantial attention from commenters, members of Congress, and the applicability of the TCPA to ringless voicemail technology, which has been the subject of considerable recent litigation,² the FCC issued its declaratory ruling to resolve a controversy and remove uncertainly about ringless voicemail.

Analysis

The FCC found that, based on its precedent, AATM’s ringless voicemail message is a call to a consumer’s wireless number and prerecorded voice messages sent via this technology are, therefore, subject to the TCPA. The FCC also found that AATM’s ringless voicemail constitutes a “call” subject to the TCPA’s protections for the same reasons the FCC found computer-generated text messages sent to a carrier’s text server to be calls under the TCPA.

In its analysis, the FCC found that the record supporting its conclusion that AATM’s ringless voicemail is identical in function to the Internet-to-phone testing the FCC in 2015 found subject to the TCPA. In the case of Internet-to-phone text messaging, the telephone number assigned to the consumer serves as a necessary and unique identifier. Similarly, the telephone number assigned to a consumer’s wireless phone and associated with the voicemail account is a necessary and unique identifier for the consumer in the ringless voicemail context. The FCC also found compelling the fact that the steps involved in sending ringless voicemail is substantially similar to the technology used, steps involved in, and software used to send text message en masse to cell subscribers. Notably, neither AATM nor any other commenter challenged the description of the technology used to deliver ringless voicemail messages or the assertion that it is essentially identical to the technology used to deliver Internet-to-phone text messages.

The FCC also stated that its finding is consistent with the ordinary meaning of “call.” Although the TCPA does not define “call,” courts have turned to dictionary definitions to determine its meaning. Webster’s Third New International Dictionary defines a call as “to communicate with or try to get into communication with a person by a telephone.” The FCC found that ringless voicemails meet this definition by directing the messages by means of wireless phone number and by depending on the transmission of a voicemail notification alert to the consumer’s phone (causing the consumer to retrieve the voicemail message).

The FCC also determined that its finding is consistent with the legislative history and purpose of the TCPA – eliminating illegal automated or prerecorded calls that are a nuisance and invasion of privacy. The FCC found ringless voicemails are unwanted messages the consumer has no control over and crowd potentially wanted messages out of the consumer’s voicemail capacity. Further, even when the consumer’s voicemail box is not full, consumers waste time listening to unwanted messages before deleting them because there is no mechanism for consumers to stop unwanted ringless voicemail calls before they reach the voicemail box. Consistent with such legislative history and purpose, the FCC concluded that Congress intended the TCPA to protect consumers from the nuisance and invasion of privacy caused by such artificial or prerecorded voice messages.

The FCC rejected AATM’s argument that ringless voicemail is not a TCPA call because it does not pass through consumers’ phone lines and that the TCPA protects only calls made directly to a wireless handset. The FCC also rejected AATM’s argument that ringless voicemail is non-intrusive since, among other things, consumers cannot block these messages, consumers experience an intrusion on their time and privacy being forced to spend time reviewing unwanted messages in order to delete them, and consumers must also content with their voicemail box filling with unwanted messages, which may prevent other callers from leaving important wanted messages.

The FCC also rejected the argument that the TCPA only applies when the consumer is charged. The FCC found that the restriction on autodialed or prerecorded calls to wireless numbers is separate from the restriction on calls to services where the call is charged. The FCC determined that ringless calls can also result in charges on retrieval of the message, including where minutes used for voicemail retrieval are deducted from a limited plan.

The FCC also rejected the notion that is ruling unnecessarily and improperly restricts political speech. The FCC found that ringless voicemail messages are “calls” subject to the TCPA, irrespective of content, and that this interpretation does not restrict any particular type of speech (putting aside that courts have found § 227(b)(1)(A)(iii) constitutional).

The FCC also found unpersuasive AATM’s argument that the Commission lacked the authority to regulate voicemail service at all because it is an enhanced service. The FCC concluded that AATM’s technology involves placing calls, not providing voicemail service.

Finally, the FCC disagreed with AATM that a Canadian regulator’s choice not to regulate voicemail broadcast for making telemarketing telecommunications should drive the FCC to conclude ringless voicemail is not subject to the TCPA. The FCC quickly dispatched this argument noting that another country’s construction of its laws does not bind the Commission’s interpretation of the TCPA.
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¹ At least two other entities filed similar petitions for declaratory rulings, which were withdrawn following significant opposition. Even though AATM withdrew its petition, the FCC chose to address the AATM petition because of its more detailed description of the technology at issue even though the other petitions raised the same legal question as AATM. Notably, the FCC stated that while its ruling is based on AATM’s petition and the record in that proceeding, “this Declaratory Ruling would apply to any entity that provides ringless voicemail using the end user’s mobile telephone number to direct the ringless voicemail to a mailbox associated with the end user’s mobile phone.” FCC 22-85 at 3, n.17.
² See, e.g., Schaevitz v. Braman Hyundai, Inc., 437 F.Supp.3d 1237, 1249 (S.D. Fla. 2019) (the ringless voicemail, that is, a direct-to-voicemail message, is a “call” under the TCPA); Picton v. Greenway Chrysler-Jeep-Dodge, 2019 WL 2567971, at *2 (M.D. Fla June 21, 2019) (rejecting the argument that ringless voicemails are not subject to the TCPA); Gurzi v. Penn Credit Corp., 449 F.Supp.3d 1294, 1298 (M.D. Fla.) (direct-to-voicemail messages fall within the plain language of the TCPA); Grant v. Regal Automotive Group, 2020 WL 3250075, at *2 (M.D. Fla. Mar. 12, 2020) (“Several federal courts, including courts in this Circuit, have concluded that a ringless voicemail is a ‘call’ subject to the TCPA.”); Saunders v. Dyck O’Neal, Inc., 319 F.Supp.3d 907, 911 (W.D. Mich. 2018) (“Both the FCC and the courts have recognized that the scope of the TCPA naturally evolves in parallel with telecommunications technology as it evolves, e.g., with the advent of text messages and email-to-text messages, or, as we have here, new technology to get into a consumer’s voicemail box directly.”); Caplan v. Budget Van Lines, Inc., 2020 WL 4430966, at *4 (D. Nev. July 31, 2020) (ringless voicemail messages are still a nuisance delivered to the recipient’s phone by means of the phone number; they are calls as defined by the TCPA); see also Soppett v. Enhanced Recovery Co., LLC, 679 F.3d 637, 638 (7th Cir. 2012) “routing a call to voicemail counts as answering the call” and can violate the TCPA); Castro v. Green Tree Servicing, LLC, 959 F. Supp. 2d 698, 720 (S.D.N.Y. 2013) (holding that for purposes of TCPA liability, it is immaterial whether the calls were answered or went to voicemail).