In a unanimous Declaratory Ruling and Order (Order) issued on November 21, 2022, the Federal Communications Commission (FCC) found that a “ringless voicemail,” which delivers a message directly to a consumer’s voicemail, constitutes a “call” under the Telephone Consumer Protection Act (TCPA).1 As a result, callers must obtain a consumer’s prior express consent before delivering a ringless voicemail directly to a recipient’s inbox using an artificial or prerecorded voice. The FCC’s Order effectively expands the reach of the TCPA, which continues to pose a threat of class action liability for companies that communicate with consumers and customers via phone.
Section 227(b)(1)(A)(iii) of the TCPA prohibits the making of 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.2 All About the Message, LLC (AATM) filed a petition on March 31, 2017, requesting a ruling by the FCC that the TCPA does not apply to ringless voicemails, i.e., companies could send ringless voicemails to consumers without obtaining their prior express consent. (See our prior alerts on the petition and its withdrawal.)
Although AATM sought to withdraw its petition, the FCC determined that it was necessary to address the applicability of the TCPA to ringless voicemails after the agency’s Consumer and Governmental Affairs Bureau received over 8,000 comments and replies related to AATM’s petition, the vast majority of which opposed AATM’s petition. In the Order, the FCC emphasized commenters’ concerns that ringless voicemails allow unwanted messages to fill up a consumer’s voicemail inbox and could prevent other callers from leaving wanted voicemail messages.
Relying on its previous decision concerning computer-generated text messages, the FCC found that a ringless voicemail is a “call” under the TCPA because the message is addressed to a consumer’s wireless telephone number, which is a “necessary and unique identifier[.]” The FCC also concluded that this finding is consistent with the ordinary meaning of “call” and the legislative history and purpose of the TCPA. Additionally, the Commission rejected AATM’s various arguments, including that ringless voicemails are non-invasive and that the TCPA only applies when a consumer is charged for a call. The FCC’s Order applies 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.”
As plaintiffs continue to file hundreds of TCPA class actions every year, this new requirement poses yet another compliance hurdle for companies that wish to avoid the TCPA’s statutory damages provision of $500 per violation ($1,500 if reckless or intentional). Although the Order does not prevent the use of ringless voicemail technology outright, callers using such technology must now comply with the TCPA as if they were placing calls or texts to recipients. This includes obtaining a consumer’s prior express consent, monitoring Do Not Call lists, training personnel, and maintaining policies and procedures that comport with the TCPA’s safe harbor provision, detailed in our prior alert.
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1 Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, Declaratory Ruling and Order (2022).
2 See 47 U.S.C. § 227(b)(1)(A)(iii).
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