FCC Confirms “Ringless Voicemails” Are Subject to the TCPA | Goodwin

On November 21, 2022, the Federal Communications Commission (FCC) released an order concerning “ringless voicemails” and the Telephone Consumer Protection Act (TCPA). In this ruling, the FCC confirmed that the delivery of “ringless voicemails” to wireless phones constitute a “call made using an artificial or prerecorded voice” such that it requires consumer consent pursuant to TCPA § 227(b)(1)(A) (iii). Section 227(b) of the TCPA prohibits making calls to a cellphone “(other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice.”

This order responds to a 2017 petition that a company filed with the FCC requesting the Commission declare that ringless voicemails were not subject to TCPA requirements such that they would need to acquire consumer consent for the voicemail message or, alternatively, provide them with a retroactive wavier as they argued the process of delivering a ringless voicemail was “neither a call made to a mobile telephone number nor a call for which a consumer is charged.”

Relying on its 2015 order finding that internet-to-phone text messages are the same as phone-to-phone text messages which are subject to the TCPA, the FCC concluded that the ringless voicemail process is similar to internet-to-phone text messaging in that it “direct[s] the messages by means of a wireless phone number and [depends] on the transmission of a voicemail notification alert to the consumer’s phone (causing the consumer to retrieve the voicemail message).”

The FCC also rejected the petitioner’s argument that ringless voicemails are not subject to the TCPA because consumers are not charged, stating that the TCPA’s “restriction on autodialed or prerecorded calls to wireless numbers is separate from the restriction on calls to services for which the caller is charged.” In denying this petition, the FCC held that 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 message to a mailbox associated with the end user’s mobile phone.”

The FCC also denied the petitioner’s request for a retroactive wavier, finding that the petitioner had failed to show good cause as the result of ringless voicemails are specifically what the TCPA aims to prevent––“annoyance, time spent reviewing and deleting, and potential crowding out of wanted messages.”

This declaratory ruling is an important decision for entities who use or have used ringless voicemails in the past as they may see a rise in class action litigations or FCC enforcement actions.

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