November 22, 2022

Ringless voicemail is subject to the TCPA

The US Federal Communications Commission released a declaratory ruling and order finding that “ringless voicemail” messages left on mobile phones using an artificial or prerecorded voice constitute calls within the meaning of the Telephone Consumer Protection Act (TCPA), and as such, require the recipient’s consent.


The matter arose when All About the Message, LLC (AATM) petitioned the FCC in March 2017 for a declaratory ruling that the delivery of a voice message directly to a consumer’s mobile phone voicemail is not a call for purposes of the TCPA.  AATM uses proprietary software to conduct direct-to-voicemail messaging, whereby a message is sent to consumers directly through the telephone company’s voicemail server, without charge to the subscriber and without appearing as a received call on the consumer’s bill.  AATM argued that because the message is deposited directly to the carrier’s voicemail platform, it is not a call made to a mobile number, is not charged to the consumer, and does not fall within the purview of FCC regulation.


In its declaratory ruling, the FCC concluded that direct-to-voicemail messaging is functionally identical to internet-to-phone texting, which the FCC has previously found to be equivalent to phone-to-phone text messaging, creating the same harm and annoyance to consumers.  The FCC added that this conclusion is supported both by dictionary definitions of the word “call,” and the legislative history and purpose of the TCPA, which was to protect consumers from the nuisance and invasion of privacy caused by unwanted artificial or prerecorded voice messages.


The FCC also rejected other arguments by AATM, including the claim that restricting AATM’s messages could be deemed an unconstitutional restriction of political speech, since the restriction is not content-based, but applies to all calls that fall within the scope of the TCPA.  AATM had, in its petition, requested a retroactive waiver of the TCPA rule; the FCC denied this request, finding neither special circumstances nor a public interest in not applying the rule.