In a ruling that will have far reaching implications, a federal court in Michigan recently found that ringless voicemail messages are calls for purposes of the Telephone Consumer Protection Act ("TCPA").
What are ringless voicemails and why did the Court rule that they are TCPA calls?
Ringless voicemail technology, generally speaking, allows callers to bypass calling a person's cell phone number directly, and instead sends messages through to the voicemail service provider's platform and, ultimately, to the subscriber. The argument that the defendant posited in this action was that by allowing a voicemail to be delivered without ever having a person's phone actually ring, such a form of contact could not be considered a call subject to the restrictions of the TCPA. We have previously advised clients that this argument would not likely be successful before courts or regulators. The federal court in Michigan agreed. It concluded that because the phone's subscriber receives a notification that s/he has a voicemail message, the effect of the ringless voicemail is the same as if the phone had rang before the voicemail was delivered. As a result, the Court found that ringless voicemails are calls for TCPA purposes and that the company which placed these messages may be held liable for such conduct.
Please note that the Federal Communications Commission ("FCC") has yet to opine on the legality of ringless voicemail. Despite being petitioned on multiple prior occasions to issue its opinion as to whether ringless voicemails constitute calls for purposes of the TCPA, the agency, thus far, has declined to do so.
Take Steps to Avoid a Ringless Voicemail TCPA Lawsuit
In the post-ACA International regulatory environment, interested parties continue to look to the FCC for guidance on a host of TCPA-related issues including whether relatively new communications technology, such as ringless voicemail, falls within the scope of the TCPA. As long as the FCC opts not to offer its opinion on these matters, however, it is inevitable that the issues will continue to be addressed by courts of law, which may lead to a hodgepodge of rulings for the foreseeable future. As a result, it is critical that when sending ringless voicemail, proper protocols are complied with in order to obtain prior express written consent prior to contacting cell phones. The rapid pace of innovation in the telemarketing space, and the affect that such innovation has on the exposure to TCPA liability for those who use it, make it critically important that marketers work closely with knowledgable counsel prior to launching any campaign using pioneering communications technology, such as ringless voicemail.
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