Petition Filed Before FCC Regarding Whether Ringless Voicemail Constitutes a Call Subject to TCPA

On March 31, 2017, All About the Message, LLC filed a petition with the Federal Communications Commission, seeking a declaratory ruling on the issue of whether the delivery of a voice message directly to a voicemail box constitutes a call that is subject to the prohibitions on the use of an automatic telephone dialing system or an artificial or prerecorded voice that are set forth in the Telephone Consumer Protection Act.

The TCPA proscribes the use of certain equipment “to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice . . . to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call . . . .”

The petitioner’s position is that the TCPA does not impose liability for voicemail messages, delivered directly to a voicemail service provider, that never pass through a person’s cellular telephone line, and never result in a charge to the subscriber for the delivery of the message.

Such conduct, according to the petitioner, falls outside the plain statutory language and the Commission’s regulations.

Specifically, the petitioner argues that Congress never intended to regulate direct to voicemail technology under the TCPA, and that the Commission lacks the authority to regulate voicemail service. Moreover, according to the petitioner, imposing liability for the use of direct to voicemail technology does not advance the goals of the TCPA.

In summary, the petitioner seeks a ruling by the Commission that the TCPA does not prohibit, nor was it designed to restrict, businesses from delivering information directly to consumers’ voicemail services without making a call to consumers’ telephone lines or causing consumers to incur a delivery charge.

This matter should be of particular interest to telemarketers and advertising compliance legal professionals.

A copy of the petition, can be seen, here.

Follow FTC Defense Lawyer on Twitter.

Richard B. Newman is an Internet marketing compliance and regulatory defense attorney at Hinch Newman LLP focusing on advertising and digital media matters. His practice includes conducting legal compliance reviews of advertising campaigns, representing clients in investigations and enforcement actions brought by the Federal Trade Commission and state attorneys general, commercial litigation, advising clients on promotional marketing programs, and negotiating and drafting legal agreements.

ADVERTISING MATERIAL. These materials are provided for informational purposes only and are not to be considered legal advice, nor do they create a lawyer-client relationship. No person should act or rely on any information in this article without seeking the advice of an attorney. Information on previous case results does not guarantee a similar future result. Hinch Newman LLP | 40 Wall St., 35thFloor, New York, NY 10005 | (212) 756-8777.


Photo Credit: -Jeffrey- Flickr via Compfight cc