FCC Determines Ringless Voicemail is Subject to the TCPA, Requires Express Consumer Consent
November 23, 2022
On November 21, 2022, the Federal Communications Commission (“FCC”) unanimously issued a Declaratory Ruling and Order (“Order”) holding that “ringless voicemail” to wireless phones is a “call” made using an artificial or prerecorded voice subject to the 1991 Telephone Consumer Protection Act (“TCPA”), thereby requiring callers to obtain a consumer’s express consent prior to delivering a ringless voicemail. The Order addresses a long running and often disputed issue and will impact both compliance efforts and litigation under the TCPA.
The matter initially arose from a 2017 Petition which sought a ruling to exclude ringless voicemail and related technology from the TCPA. The Petitioner argued, inter alia, that a voicemail message directly to a consumer’s cell phone voicemail was neither a “call” made to a mobile telephone nor one which the consumer is charged for, thereby arguing the service was not regulated by the FCC. (Paragraph 3 of order). While the Petitioner subsequently sought to withdraw the 2017 Petition following public comment, the FCC acted on its own motion to clarify the issue.
The Order relied on the FCC’s 2015 precedent regarding Internet-to-phone text messages, finding that ringless voicemail is “identical in function to Internet-to-phone texting” which the FCC determined is subject to the TCPA, noting that neither Petitioner nor any commenter challenged the description of the technology used to deliver the ringless voicemail messages as essentially identical to the technology used to deliver Internet-to-phone text messages. (Paragraph 10 of order). Ultimately, the FCC held that “ringless voicemail” represents “the harms the TCPA seeks to prevent – annoyance, time spent receiving and deleting, and potential crowding out of wanted messages.” (Paragraph 14 of order).