Advertising Law Blog

UPDATE: In late June, 2017, All About The Message withdrew its ringless voicemail petition from the FCC’s consideration.  All indications were that the petition to declare ringless voicemail to be TCPA-compliant was going to fail. With the petition withdrawn, there remains no definitive ruling on the legality of this new technology.

A ringless voicemail provider named All About the Message, LLC has filed a new petition asking the FCC to declare that the delivery of a voice message directly to a voicemail box does not constitute a “call” that falls under the strict requirements of the TCPA. Ringless voicemail providers have developed technology that can reach consumers’ cell phones quickly and efficiently while, they believe, complying with the TCPA’s restrictions on the use of automatic telephone dialing systems (“ATDS”) and artificial or prerecorded voice messages. The petition asks for the FCC to weigh in and end the legal uncertainty.

For those unfamiliar with the technology, it leaves a voicemail message directly onto a subscriber’s cell phone without causing the phone to ring. Because the voicemail servers are housed on landlines, and only accessed later by cell phones, ringless voicemail providers argue that their service is a computer-to-computer communication, not a cell phone call. Significant to this position is the fact that the cell phone subscriber cannot answer when the voicemail is coming in, and there is no charge to the subscriber’s account.

According to the position taken by All About the Message, because the messages never pass through a person’s cellular telephone line, and never result in a charge, the TCPA is not implicated and therefore the consumer-friendly statute cannot be used as a basis to sue voicemail service. A favorable ruling from the FCC would immunize ringless voicemail from the endless TCPA class-action lawsuits that plague robocallers, debt collectors and other uses of ATDS systems.

According to All About the Message, the TCPA should not restrict the use of ringless voicemails because “voicemail messages delivered directly to a voicemail service provider do not implicate the same concerns as autodialed telephone calls. There is no voice channel through which a voice communication can be made, and no function on the telephone that would allow the subscriber to answer the ‘call’ or communicate back instantaneously. Unlike the computerized dialing methods the [TCPA] was designed to prevent, direct to voicemail technology does not make a ‘call’ to a cellular telephone line and does not involve the potential annoyance of dead air calls. Consumers have the freedom to dial into their carriers’ voicemail service platform to pick up the voicemail or not, to listen to it or not, as and when they see fit, and may do so without incurring any delivery charges.”

Takeaway: We continue to believe that ringless voicemail is not covered by the TCPA, but, given the pending petitions, we cannot state with certainty what position the FCC will take on the matter. There is no timetable for the FCC to issue a ruling and no indication that one will be forthcoming soon. A similar petition was filed by a company named VoApps, Inc. in 2014, and that petition remains pending without any ruling. However, with January’s change in the presidential administration and the added pressure of a second petition, perhaps the FCC will make its position known sooner rather than later.