On November 21, 2022, the Federal Communications Commission (FCC) released a Declaratory Ruling and Order (“Order”) holding that ringless voicemails to wireless phones require consumer consent. The FCC further held that ringless voicemails are covered by the TCPA because they are calls made using an artificial or prerecorded voice.
The FCC’s ruling follows a March 2017 petition filed by All About the Message, LLC (“AATM”), in which AATM implored the FCC to find that delivery of a voicemail message directly to a consumer’s cell phone voicemail is not covered by the TCPA, and consumer consent is not needed to deliver such messages. The Order describes that AATM used software that created a landline to landline session directly to a telephone company’s voicemail server without charging the telephone subscriber or appearing as a received call on a phone bill. In the March 2017 petition, AATM argued that these ringless voicemail messages are not “calls” and therefore the TCPA should not apply.
In rendering its decision, the FCC relied on precedent from prior FCC determinations that found ringless voicemail messages are calls for purposes of the TCPA. Additionally, the FCC looked to the ordinary meaning of the term, “call,” citing to Ninth Circuit case law for a definition. The FCC quoted the Ninth Circuit’s definition of “call” in the 2009 case of Satterfield v. Simon & Schuster, Inc., as, “to communicate with or try to get into communication with a person by a telephone.” Ultimately, the FCC reasoned that ringless voicemails meet this definition by directing messages through the use of a wireless phone number and the transmission of a voicemail notification alert to the consumer’s phone.
