FCC rules ringless voicemails are subject to TCPA robocall prohibition - JD Supra

The Federal Communications Commission ruled this month that “ringless voicemail” to wireless phones is simply a “call” made utilizing an artificial oregon prerecorded dependable and truthful taxable to the Telephone Consumer Protection Act robocall prohibition.  The TCPA prohibits making immoderate non-emergency telephone utilizing an automatic telephone dialing strategy oregon an artificial oregon prerecorded dependable to a wireless telephone fig without the anterior explicit consent of the called party.  The FCC’s ruling is accordant with tribunal decisions to date.

The FCC’s declaratory ruling denied a petition filed successful 2017 by a institution that is the distributor of exertion that allows voicemail messages to beryllium delivered straight to consumers’ voicemail services.  The petitioner argued that the process by which the ringless messages are deposited connected a carrier’s level is not a telephone to a mobile telephone number.  In its petition, it described the exertion arsenic follows:

[The technology] is capable to present messages straight to voicemail without dialing a consumer’s cellular telephone fig and successful specified a mode that the user is incapable to person a dependable transmission communication.  [This] nonstop to voicemail insertion exertion bypasses the telephone and subscriber altogether, creating nonstop connection betwixt [the exertion developer’s] servers and the voicemail strategy of the bearer telephone company.  [The] exertion interconnects the bearer telephone companies’ voicemail servers straight with [the exertion provider’s] interior network.  This allows [the exertion developer’s] computers to pass straight with the bearer telephone companies’ computers without ever placing a telephone to the subscriber.  Consumers whitethorn past retrieve the messages from the voicemail work provider, often by dialing a abstracted telephone fig and entering a password.

The FCC rejected the petitioner’s statement that ringless voicemail is not a TCPA telephone due to the fact that it does not walk done consumers’ telephone enactment and that the TCPA protects lone calls made straight to a wireless handset.  In the FCC’s view, determination is nary functional quality from the consumer’s position betwixt ringless voicemail and the Internet-to-phone texting that the FCC antecedently recovered taxable to the TCPA.  In specified substance messaging, the telephone fig assigned to the user serves arsenic a indispensable and unsocial identifier.  In the ringless voicemail context, the telephone fig assigned to a consumer’s wireless telephone and associated with the voicemail relationship is besides a indispensable and unsocial identifier for the consumer.   

The FCC besides recovered its decision accordant with the mean meaning of “call.”  According to the FCC, ringless voicemails met the Webster dictionary explanation of a “call” by “directing the messages by means of a wireless telephone fig and by depending connected the transmission of a voicemail notification alert to the consumer’s telephone (causing the user truthful retrieve the voicemail message).”  In addition, the FCC considered its decision to beryllium accordant with the TCPA’s intent and history.  The FCC specifically noted that ringless voicemails make the aforesaid user occupation created by automated oregon prerecorded calls—they “crowd perchance wanted messages retired of the consumer’s voicemail capacity.”  In addition, they origin consumers to person to “waste clip listening to unwanted messages earlier deleting them due to the fact that determination is nary mechanics [i.e. call-blocking apps] for consumers to halt unwanted ringless voicemail calls earlier they scope the voicemail box.”

The FCC rejected the statement that it should not instrumentality enactment owed to regulatory and exertion changes since 2017, commenting that the information that different types of ringless voicemail whitethorn person developed since past did not alteration its investigation of the benignant of ringless voicemail described successful the petition.  The FCC stated:

Our declaratory ruling applies to immoderate ringless voicemail exertion that uses the extremity user’s mobile telephone fig to nonstop the ringless voicemail connection to the extremity user’s mobile phone  and our investigation of user harm would use to immoderate exertion that does so.

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