The Federal Communications Commission ruled this month that “ringless voicemail” to wireless phones is a “call” made using an artificial or prerecorded voice and therefore subject to the Telephone Consumer Protection Act robocall prohibition.  The TCPA 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.  The FCC’s ruling is consistent with court decisions to date.

The FCC’s declaratory ruling denied a petition filed in 2017 by a company that is the distributor of technology that allows voicemail messages to be delivered directly to consumers’ voicemail services.  The petitioner argued that the process by which the ringless messages are deposited on a carrier’s platform is not a call to a mobile phone number.  In its petition, it described the technology as follows:

[The technology] is able to deliver messages directly to voicemail without dialing a consumer’s cellular telephone number and in such a way that the consumer is unable to receive a voice channel communication.  [This] direct to voicemail insertion technology bypasses the telephone and subscriber altogether, creating direct communication between [the technology developer’s] servers and the voicemail system of the carrier telephone company.  [The] technology interconnects the carrier telephone companies’ voicemail servers directly with [the technology provider’s] internal network.  This allows [the technology developer’s] computers to communicate directly with the carrier telephone companies’ computers without ever placing a call to the subscriber.  Consumers may then retrieve the messages from the voicemail service provider, often by dialing a separate phone number and entering a password.

The FCC rejected the petitioner’s argument that ringless voicemail is not a TCPA call because it does not pass through consumers’ phone line and that the TCPA protects only calls made directly to a wireless handset.  In the FCC’s view, there is no functional difference from the consumer’s perspective between ringless voicemail and the Internet-to-phone texting that the FCC previously found subject to the TCPA.  In such text messaging, the telephone number assigned to the consumer serves as a necessary and unique identifier.  In the ringless voicemail context, the telephone number assigned to a consumer’s wireless phone and associated with the voicemail account is also a necessary and unique identifier for the consumer.   

The FCC also found its conclusion consistent with the ordinary meaning of “call.”  According to the FCC, ringless voicemails met the Webster dictionary definition of a “call” by “directing the messages by means of a wireless phone number and by depending on the transmission of a voicemail notification alert to the consumer’s phone (causing the consumer so retrieve the voicemail message).”  In addition, the FCC considered its conclusion to be consistent with the TCPA’s purpose and history.  The FCC specifically noted that ringless voicemails create the same consumer problem created by automated or prerecorded calls—they “crowd potentially wanted messages out of the consumer’s voicemail capacity.”  In addition, they cause consumers to have to “waste time listening to unwanted messages before deleting them because there is no mechanism [i.e. call-blocking apps] for consumers to stop unwanted ringless voicemail calls before they reach the voicemail box.”

The FCC rejected the argument that it should not take action due to regulatory and technology changes since 2017, commenting that the fact that other types of ringless voicemail may have developed since then did not change its analysis of the type of ringless voicemail described in the petition.  The FCC stated:

Our declaratory ruling applies to any ringless voicemail technology that uses the end user’s mobile telephone number to direct the ringless voicemail message to the end user’s mobile phone  and our analysis of consumer harm would apply to any technology that does so.