The TCPA prohibits making any non-emergency call using an automatic telephone dialing system or an artificial or prerecorded voice to a wireless telephone number without the prior express consent of the called party. The term “call” is not defined in the TCPA, leading to uncertainty and disagreement on the issue of whether a text message or a ringless voice message (RVM) is a call. Regarding text messages, that issue was clarified in the FCC’s infamous 2015 Declaratory Ruling, in which the Federal Communications Commission concluded that the use of the wireless phone number satisfied the TCPA’s requirement that the call be “to any telephone number assigned to a [wireless] service” because the wireless telephone number is a necessary and unique identifier for the consumer.
On November 21, 2022, the FCC used this logic to clarify in a unanimous Declaratory Ruling and Order by the full Commission that an RVM, similar to a text message, is a call and therefore requires consent. Without that consent, Ringless Voicemails Violate the TCPA.
This Ruling was in response to a petition filed by All About the Message, LLC on March 31, 2017, which asked the Commission to declare that delivery of a message directly to a consumer’s cell phone voicemail is not a call protected by the TCPA. Even though All About the Message withdrew its Petition – presumably because of the avalanche of negative comments from consumers and legislators – the FCC issued the Ruling.
We have long advised clients that the use of RVM without obtaining prior express written consent is very risky (Schaevitz v. Braman Hyundai, Inc.). Because state and district courts are required to follow the FCC’s guidance on the interpretation of the TCPA, it is now no longer simply risky to use RVM; it’s unlawful. All RVM campaigns that do not have prior consent should be discontinued or reviewed by experienced compliance counsel.
Michele is the Managing Partner at M&S and former Chief of the Ohio Attorney General’s Consumer Protection Section. Bringing more than two decades of experience in the consumer protection arena, she advises highly regulated businesses on a wide range of telemarketing, privacy, and other consumer protection matters.