• All Dressed Up and Nowhere to Go: Ringless Voicemail FCC Petition Withdrawn
  • June 30, 2017 | Authors: Francis X. Nolan; Wilson G. Barmeyer; Rocco E. Testani; Thomas M. Byrne; Lewis S. Wiener; Curtis Arnold; Ronald W. Zdrojeski; Alexander P. Fuchs
  • Law Firms: Eversheds Sutherland (US) LLP - Washington Office; Eversheds Sutherland (US) LLP - Atlanta Office; Eversheds Sutherland (US) LLP - Atlanta Office
  • In the face of significant opposition from virtually all quarters, All About The Message, LLC (AATM), has withdrawn its petition asking the Federal Communications Commission (FCC) for a declaratory ruling that a prerecorded message delivered directly to a recipient’s voicemail does not constitute a “call” subject to the restrictions of the Telephone Consumer Protection Act (TCPA). During the FCC’s open comment period, opponents of the ringless voicemail technology (also known as direct-to-voicemail, or DTV) came out in full force against AATM’s proposed ruling. AATM quietly withdrew the petition on June 20, 2017, leaving the issue unresolved.

    AATM’s petition was the first of its kind to be taken up by the FCC on the issue of whether ringless voicemail falls within the scope of the TCPA, which prohibits autodialed or prerecorded non-marketing calls to cell phones without the express consent of the recipient. The petition argued that by going through a telephone company’s landline to place a message in a recipient’s voicemail—without actually calling the recipient—the service could not be considered a “call” under the TCPA. Although there could be a subsequent charge to the customer for accessing the voicemail, the petition asserted, any such charges would not be covered by the TCPA because the consumer would need to take an affirmative step to access the voicemail. The petition was discussed by Eversheds Sutherland attorneys in an earlier Legal Alert.

    During the FCC’s comment period, which ended on May 18, 2017, consumer advocate groups, some state attorneys general, and even a handful of US Senators advocated against the AATM petition. These opponents of the petition argued that ringless voicemails circumvent the spirit and purpose of the TCPA to prevent unwanted robocalls, and open the floodgates for companies to place unlimited unwanted calls to consumers. Opponents also stated that the technology improperly “shifted the blame for the final delivery” of unwanted messages to the recipient.

    The issue quickly became political. The Republican National Committee and lobbyists with the US Chamber of Commerce chimed in to support the petition, arguing that the ringless technology is not intrusive, and that an adverse finding by the FCC would infringe on the First Amendment rights of companies like AATM. The issue is not expected to go away. The withdrawal of the petition in a single-sentence letter sent to the FCC leaves the issue open for a future ruling by the Commission or possibly the courts.