Do ringless voicemail products really comply with the TCPA?

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A relatively new trend in automotive marketing is “Ringless Voicemail” or “Direct to Voicemail” technology: instead of calling a potential customer and leaving a voicemail, a software system deposits a message directly onto the voicemail server of a recipient’s cell phone carrier. Vendors offering this service approach dealers with claims like “Voice Messages Sent Directly to Customer’s Smartphone: FCC Compliant; Do Not Call Compliant, Customer phone never rings!” However, regulators like the FCC or state attorney generals may not see this new technology as a legal method for contacting consumers who have not agreed to receive prerecorded messages.

Telemarketing advertising is subject to a complex framework of federal and state laws, including the Telephone Consumer Protection Act of 1991 (“TCPA”). The TCPA prohibits businesses from making marketing calls via automated dialing technology or a prerecorded voice, unless the recipient has consented to receive calls using such tecwhnology. If any autodialing software or prerecorded messages to communicate with consumers is used, we strongly recommend having the express written consent of all potential call recipients before using such technologies.

The TCPA specifically prohibits businesses from making any “call” using autodial or prerecorded messages without a consumer’s consent (regardless of whether they are on the national Do-Not-Call Registry). 47 United States Code § 227. One main question with Ringless Voicemail is whether it qualifies as a “call” to the message recipient. In a March 2017, petition to the FCC, a vendor asked the FCC to declare delivering a message directly to a voicemail box does not trigger the TCPA’s autodialing or prerecorded message prohibitions because no “call” is being made.[1] The vendor argued because the software bypasses telephone lines altogether and allows their software to communicate directly with cell phone carrier voicemail servers (without going through any telephone equipment), the vendor’s operated an “information service” differing from the “telecommunications services” regulated by the TCPA.

This issue even became political when the Republican National Committee asked the FCC in May to approve the vendor’s petition (citing first amendment rights), while some Senate Democrats opposed the petition.[2] Consumer advocacy groups also opposed the petition arguing that Ringless Voicemail causes the same consumer woes that originally prompted Congress to enact the TCPA (e.g., voicemail boxes full of ad messages, alerting consumers to a voicemail with a tone or “ring,” and charges to consumers for receiving solicitations).[3] On June 21, 2017, the petition to declare Ringless Voicemail outside of the bounds of the TCPA was withdrawn. Some legal commentators suspect this occurred because the petitioning vendor feared an adverse ruling was inevitable.[4] An adverse ruling would be consistent with the FCC’s previous


[1] https://ecfsapi.fcc.gov/file/104010829816078/Petition%20for%20Declaratory%20Ruling%20of%20All%20About%20the%20Message%20LLC.pdf

[2] https://arstechnica.com/tech-policy/2017/05/republicans-claim-1st-amendment-right-to-send-you-robo-voicemails/ ; https://arstechnica.com/information-technology/2017/06/ringless-voicemail-spam-wont-be-exempt-from-anti-robocall-rules/

[3] http://consumerfed.org/wp-content/uploads/2017/05/5-18-17-Debt-Collection-Voicemail_Comments.pdf

[4] https://www.lexology.com/library/detail.aspx?g=be2cb583-4cde-420e-b26a-5...