Though there has been some debate in the courts on this front, the Federal Communications Commission (FCC or Commission) clarified its position in a recent declaratory ruling issued in November 2022, concluding that callers must obtain a consumer’s consent before delivering a so-called “ringless” voicemail, as they are “calls” governed by the Telephone Consumer Protection Act (TCPA).
All About the Message (AATM) filed a petition with the FCC in 2017, asking the agency to find that delivery of a message directly to a consumer’s cellphone voicemail is not covered by the TCPA and therefore the sender did not need the consent required under the TCPA to send the message.
The FCC opened the petition up for comment and received more than 8,000 replies—“almost all” of which opposed AATM’s petition. AATM sought to withdraw its petition, but the FCC elected to issue a declaratory ruling since the petition had drawn substantial attention. Moreover, the applicability of the TCPA to ringless voicemail has been the subject of litigation, prompting the FCC to state that the declaratory ruling was “necessary to resolve a controversy and remove uncertainty about ringless voicemail.”
Relying on its own prior rulings, the FCC analogized to the application of the TCPA to computer-generated text messages sent to a carrier’s text server to find that ringless voicemails constitute a “call” subject to the TCPA’s protections, even though such voicemails are arguably less disruptive than traditional calls.
From the recipient’s perspective, both internet-to-phone text messaging and ringless voicemails are functionally equivalent to phone-to-phone text messaging, with identical harm to consumers, the Commission said.
“One expert states that the ‘steps involved in sending a [ringless voicemail] message are substantially the same as the technology used and steps involved in sending both mass text messages and text to email addresses text messages’ and that ‘[f]rom an engineering and technical perspective, this software delivery model that enables multiple remote customers to deliver [ringless voicemail] voice messages en masse to cellular subscribers is precisely the identical software delivery model that mobile messaging companies use to enable their customers to deliver text messages en masse to cellular subscribers.’”
The FCC’s finding was also consistent with the ordinary meaning of “call” as well as the legislative history and purpose of the TCPA.
In adopting the statute, Congress specifically found that “automated or prerecorded calls are a nuisance and an invasion of privacy, regardless of the type of call.”
“That is a key consumer problem with ringless voicemail—unwanted messages, messages the consumer has no control over, crowd potentially wanted messages out of the consumer’s voicemail capacity,” according to the declaratory ruling. “Even when their voicemail boxes are 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.”
Consumer commenters validated these concerns, the FCC said.
The Commission 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.
“[T]here is no functional difference from the consumer’s perspective between AATM’s ringless voicemail and the internet-to-phone texting that the Commission previously found subject to the TCPA,” the FCC wrote.
Nor was the Commission persuaded that ringless voicemail is non-invasive, particularly in light of the many commenters who complained that ringless voicemails cannot be blocked, that consumers experience an intrusion on their time and privacy by being forced to spend time reviewing unwanted messages in order to delete them, that a phone may signal there is a voicemail and even ring once before the message is delivered, and mailboxes may fill up with ringless voicemails and prevent other callers from leaving important, wanted messages.
The FCC ordered that the declaratory ruling was effective upon its November 21 release.
To read the FCC’s declaratory ruling and order, click here.
Why it matters: The issue of the TCPA’s applicability to ringless voicemails has been the subject of much debate, both in and out of the courtroom (while the first court to consider the question held that a ringless voicemail is a call under the statute, earlier this year an Ohio federal court said that the receipt of a single ringless voicemail was insufficient to create Article III standing under the TCPA). The FCC effectively ended the debate, making it “crystal clear that ringless voicemail is subject to the [TCPA] and our rules prohibiting callers from sending this kind of junk without consumers first giving their permission to be contacted this way,” as FCC Chair Jessica Rosenworcel said in a statement accompanying the declaratory ruling and order. This also shows why getting TCPA-compliant consent no matter the form of technology used is often a best practice.