FCC Confirms that Ringless Voicemail is Covered by the TCPA

December 6, 2022 – On November 21, 2022, the Federal Communications Commission (FCC) released a declaratory ruling holding that the delivery of “ringless voicemail” to wireless phones is regulated as a call by the Telephone Consumer Protection Act of 1991 (TCPA). Specifically, the ruling clarifies that prior consumer consent is needed before an organization can transmit straight-to-voicemail messages to consumers, since that activity constitutes a “call” under Section 227 of the TCPA. In explaining its decision, the Commission observed that applying the TCPA in the ringless voicemail context is consistent with the law’s history and purpose. It noted that Congress had clearly intended to mitigate the delivery of this type of unwanted messages (over which consumers have no control, and which potentially crowd out wanted messages). In short, the FCC’s ruling confirms that ringless voicemail is not a loophole by which a caller can avoid TCPA considerations.

The Commission’s analysis and conclusions in this ruling are not novel. Indeed, its interpretation is consistent with past enforcement decisions and longstanding judicial construction of Section 227. The FCC explained in the ruling that treating ringless voicemail as subject to the TCPA is consistent with a 2015 declaratory order in which it held that internet-to-phone text messages are regulated “calls.” It observed that, even though ringless voicemail does not involve headset-to-headset communication, the technology still relies on wireless telephone numbers to identify and target consumers (just like internet-to-phone messaging does). The Commission then identified a series of federal court decisions reaching back to 2019 that have interpreted Section 227 similarly, and as a result, have uniformly held the TCPA to apply to ringless voicemail.

Because the FCC’s ruling reaffirms the widely understood application of Section 227 to ringless voicemail delivery, organizations engaging in phone messaging campaigns using this technology should continue to closely follow the TCPA’s requirements as they have in the past.

For more information on this topic, please contact one of the authors, Steve Roberts or Mateo Forero.

 



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