FCC Finds Ringless Voicemail Subject to TCPA

On November 21, 2022, the FCC released a Declaratory Ruling denying a 2017 Petition filed by All About the Message, LLC (“AATM”) by finding that “ringless voicemail” to wireless phones is subject to section 227 of the 1991 Telephone Consumer Protection Act (“TCPA”) and requires consumer consent.  The Commission concluded that ringless voicemails constitute a call to a customer’s wireless number for the same reasons that the Commission found computer-generated text messages are a call: 1) the consumer’s number is a necessary and unique part of the process; 2) from an engineering and technical perspective, the delivery method is identical to those methods that enable mass delivery of text messages; 3) it fits within the ordinary meaning of “call;” and 4) it is consistent with the intent of the TCPA, as Congress specifically found that automated or prerecorded calls were an invasion of privacy and a nuisance, in large part, because they fill up answering machines and prevent other callers from leaving messages.

In coming to this conclusion, the Commission rejected arguments made by AATM that: 1) ringless voicemail is not a call because it does not pass through consumers’ phone lines; 2) the Commission’s call forwarding distinction is applicable here (because that deals specifically with circumstances where a call placed to a wireline number is subsequently forwarded to a wireless number); 3) ringless voicemail is noninvasive; 4) the TCPA only applies when the customer is charged; 5) the rules unreasonable restrict freedom of speech; 6) the Commission lacks authority to regulate voicemail; and 6) the Commission should be persuaded to refrain from regulating ringless voicemail based on Canada’s choice not to regulate.

The Declaratory Ruling also denied AATM’s request for waiver of the Commission’s robocalling rules, finding that there were no special circumstances to justify a waiver and that such a waiver would not be in the public interest.

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