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August 2018 TCPA Compliance Monitoring Report
Admittedly, ringless voicemail probably is not the final frontier for the Telephone Consumer Protection Act (TCPA). As long as technology allows business to reach out to consumers on their phone in new and innovative ways, the TCPA will likely play a role in business-to-consumer interactions. That said, ringless voicemail is certainly one of the newest frontiers for the TCPA, and it is likely to receive increased attention as the technology’s use spreads.
Ringless voicemail allows a person to “drop” a voicemail into another person’s voicemail box without causing the recipient’s cell phone to ring. The technical process behind ringless voicemail is somewhat in dispute, and different providers of the service likely achieve their voicemail drops in various ways. In general, ringless voicemail providers claim that their services do not touch the public switched telephone network and are instead delivered directly through a voicemail provider’s servers. There has also been speculation that a “ringless” voicemail drop could be accomplished by calling a cell phone twice in quick succession, which would cause the second call to be diverted to voicemail because the target phone number would be busy. In this case, the first call would be disconnected before the target cell phone rings.
The key question for both ringless voicemail providers and businesses that may want to rely on ringless voicemails to reach consumers is: Does a ringless voicemail constitute a “call” under the TCPA? While All About the Message (“AATM”), a ringless voicemail provider, asked for clarification that a voicemail delivered directly to voicemail box is not a call for TCPA purposes, the petition was withdrawn, and the Commission has yet to address ringless voicemails explicitly.
In its withdrawn petition, AATM argued that its ringless voicemail service did not meet the TCPA’s definition of a call. For support, AATM cited the Commission’s decision that calls forwarded by a subscriber to a wireless number do not violate the TCPA’s prohibition on making autodialed or prerecorded calls to wireless numbers. However, the distinction between an end user forwarding calls to his or her own wireless number and a third party inserting messages on an end user’s wireless phone may not make the call forwarding precedent the best comparison for ringless voicemail. While the FCC’s lack of action on ringless voicemails leaves space for a ringless voicemail provider or user to continue arguing that a ringless voice message is not a call for TCPA purposes, taking such a position represents an aggressive risk posture at this point. Moreover, some recent FCC TCPA precedent in non-ringless voicemail contexts raises some red flags for taking a narrow view of what a call is under the TCPA.
Nor should a ringless voicemail provider or user view the withdrawal of AATM’s petition as positive evidence that ringless voicemail is not subject to the TCPA. At best, the withdrawal is ambiguous and leaves questions open. However, it is worth noting that AATM’s petition was withdrawn amid significant consumer response against ringless voicemail when the Commission sought comment on the petition. Among the most common complaints were consumer fears that ringless voicemail advertisements could clog a consumer’s voice mailbox or prevent the consumer from receiving wanted voicemails and complaints that consumers would face significant hassle going through voice mailboxes full of advertisements to find more critical voice messages.
In many ways, ringless voicemail is less intrusive than autodialed calls to a consumer’s wireless phone, and ringless voicemail providers point to their services as net benefits to consumers who are frustrated by the constant interruption of receiving autodialed calls on their cell phones. However, emerging ringless voicemail technologies remain in a gray area for the TCPA. For providers and users that want to minimize litigation and regulatory enforcement risk, obtaining consent from end users being contacted and ensuring robust consent documentation remains the best course of action. Ringless voicemail providers and users should also continue to monitor any FCC decisions related to the technology and consult experienced telecommunications counsel about the risks associated with using ringless voicemail technology.
If you have any questions about how the TCPA impacts your business’s use of ringless voicemail technology, please contact Seth Williams at slw@commlawgroup.com, Jane Wagner at jlw@commlawgroup.com, or Nate Hardy at njh@commlawgroup.com.
