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June 21, 2018Download PDF

Drop it Like it's Not: "Ringless" Voicemails and the TCPA

Uninvited robocalls and spam texts can be extremely annoying to consumers. Yet these methods of direct communications are widely used by businesses and the numbers are growing each year. In 2017, the Federal Trade Commission received 7,157,370 consumer complaints regarding unsolicited robocalls, an increase of almost 2 million from the prior year (see FTC's 2017 Do Not Call Registry Data Book). Consumers are supposed to get protection from harassing calls under the federal Telephone Consumer Protection Act (“TCPA”) which regulates these activities and confers on the consumer the right to sue.

To circumvent the TCPA’s protections, businesses have become very creative with new technologies, trying to distinguish them from traditional phone calls. One such technology that is gaining momentum is “ringless” voicemail technology whereby consumers receive prerecorded telemarketing calls directly to their voicemail inbox without any accompanying telephone ring. Do ringless voicemails violate the TCPA? The answer depends on whether courts will deem these communications to be “calls” within the meaning of the statute.

The TCPA makes it unlawful “to make any call” using an automated telephone dialing system without the recipient’s prior express consent. 47 U.S.C. §227(b)(1)(A). Neither the TCPA nor the FCC’s rules define the word “call.” Courts have ascribed this term its ordinary meaning and most have held that mass texts from a text messaging service are “calls” within the meaning of the TCPA since the purpose of the text, just like a robocall, is to solicit further phone communication with the person receiving the text.

If computer-generated texts sent to a carrier’s text server are not traditional telephone communications, but are still “calls” prohibited by the TCPA, ringless voicemails should be treated similarly. The technology used to deliver “ringless” voicemails makes a data connection to a voicemail server instead of a text server by dialing the voicemail server directly. The technology then passes the cellular telephone number of the intended recipient to the voicemail server in order to identify the particular voice mailbox of the intended recipient-cellular user. The message is then deposited in the voicemail box of the intended recipient, just as the text is then deposited in the text message server. The voicemail box server then alerts the user of a message and the message is retrieved. An alert tone is played, a visual message is displayed, and, with many phones today, a transcription of the message is sent to the phone. All of this is done without the user’s consent.

Although the technology used to deliver voicemail messages in this way may not have existed in 1991 when the TCPA was enacted, the wording of the statute is not limited to 1991 then-existing technology. Courts have found that the purpose and history of the TCPA shows it was drafted to evolve and as noted above, the TCPA covers mass texts, a technology that did not exist in 1991. The question of whether or not a “ringless” voicemail is a “call” under the TCPA is still unsettled and is working its way through the courts now.