By Michele Shuster & Josh Stevens, Mac Murray & Shuster LLP

You are running a special trying to clear out some inventory before you receive another shipment of the hottest new vehicles on the market. Direct mail is slow and emails keep getting caught in your customers’ junk boxes. With the prevalence of cell phones, you consider calls and text messages, but remember that without following well-developed compliance rules you could face steep damage awards of up to $1,500 per call under the Telephone Consumer Protection Act (“TCPA”). Then a miracle happens. You hear about a relatively new technology called ringless voicemail that allows you to deposit pre-recorded voicemail messages without ever calling customers, and the best part is that it promises to be 100% TCPA-compliant. As with all things that sound too good to be true, it very well may be.

Ringless voicemail allows a business to deposit a voicemail message into a recipient’s voicemail box without placing a traditional call to the recipient.  Rather, the technology links directly to the voicemail server for the recipient and the deposit occurs through an internet transfer. The recipient’s phone does not ring, but the recipient receives a voicemail alert in whatever fashion they have selected.

 Ringless voicemail providers argue that ringless voicemail may not qualify as a “call” under the TCPA because only calls to a telephone number “assigned to” the consumer’s telephone service are subject to liability. Ringless voicemail does not connect to the telephone number of the consumer, but rather the voicemail server of the consumer’s telephone carrier. Additionally, under prior Federal Communications Commission (“FCC”) precedent, voicemail services are not “common carrier” services like telephone calls, but “enhanced information services.” Courts have held that “information services” are exempt from Title II of the Telecommunications Act, and the TCPA specifically.

To date, neither the courts nor the FCC have issued guidance on whether ringless voicemail is a “call” to a cell phone.  However, twice in the past few years, ringless voicemail providers unsuccessfully petitioned the FCC to declare that ringless voicemail does not come under the TCPA. In August 2014, ringless voicemail provider VoApps filed a Petition for Declaratory Ruling seeking to clarify the applicability of the TCPA to ringless voicemail. The FCC solicited comments from the public and VoApps met with several senior FCC staff members and Commissioner O’Rielly.  A few days later, without explanation, VoApps withdrew its petition before the FCC ruled on it.  While no public information exists as to why the petition was withdrawn, it’shile no public information exists as to why the petition was withdrawn,  oicemail is a call or a prerecorded message to a cell  likely, that the FCC staff informally informed VoApps that the Commission would likely rule unfavorably on the Petition. 

Then in 2017, All About the Message, another ringless voicemail provider, filed its own Petition to the FCC for a Declaratory Ruling that the TCPA does not apply to ringless voicemail.  During the public comment period, commenters filed several thousand comments in opposition to the Petition. The Attorneys General of Kentucky, Massachusetts and New York, also filed comments taking the position that ringless voicemail is subject to the TCPA because it facilitates the delivery of a prerecorded message through the consumer’s cell phone even if the phone does not ring in the traditional sense.  After meeting with FCC staff, All About the Message, like VoApps before it, withdrew its Petition.

One may ask why, if the FCC has not taken a position on ringless voicemail, should a company be concerned about whether the TCPA applies?  When the FCC has issued an official interpretation of the TCPA, courts are generally required to defer to the FCC under the Hobbs Act; however, when the FCC has been silent on a question, courts are free to interpret the TCPA as they wish.  At this time, no court has had the opportunity to rule on whether ringless voicemail is subject to the TCPA. Also, likely due to the publicity received by the petitions, multiple states, including Florida and New Jersey, are considering bills to restrict ringless voicemail.

Given this regulatory uncertainty, and the potential high costs associated with TCPA violations, what is a business to do? First, seek counsel familiar with TCPA issues and the latest legal developments. Second, consider treating ringless voicemail as a “call” delivering a pre-recorded message for compliance with the TCPA and analogous state regulations. Third, be prepared to adequately respond to any complaints you receive. And, most importantly, always remember that the promise of 100% compliance may not be as clear cut as it first appears.

Mac Murray & Shuster LLP focuses on helping businesses comply with a broad range of regulatory demands including compliance with the TCPA and state consumer protection regulations. To learn more, visit www.mslawgroup.com or contact the authors: mshuster@mslawgroup.com; jstevens@mslawgroup.com.