Am I crazy? Did my phone ring? These questions may have crossed your mind during that moment when you look down at the top left corner of your cell phone and see the universal icon for new voicemail. Many marketers are now using or considering using ringless voicemail technology, or Direct-to-Voicemail cell messaging, to leave messages directly on a cell phone’s voicemail server. In simplistic terms, ringless voicemail technology allows for voice messages to be deposited directly into a consumer’s cell phone voicemail box, without any ringing on the cell phone and without being carried over the cellular network.

We recently blogged about a March 2017 petition filed at the Federal Communications Commission (FCC) by All About the Messaging, LLC (AATM), which sought a pronouncement that the deployment of ringless voicemail technology does not constitute a “call” under the Telephone Consumer Protection Act (TCPA). AATM’s petition turned out to be a lightning rod for supporting and opposition comments.

For example, in comments submitted to the FCC, the Republican National Committee (RNC) showed it supports the idea that direct delivery of voice messages to voicemail does not constitute a call under the TCPA. The RNC argued that “[p]olitical speech is ‘at the core of the First Amendment,’ and subjecting direct-to-voicemail political messages to the TCPA would unnecessarily and improperly restrict speech.” Likewise, the U.S. Chamber of Commerce (Chamber) and the American Financial Services Association (AFSA) also submitted comments pushing for a ringless voicemail exception to the TCPA. Referencing the TCPA, the Chamber asserted that the FCC “cannot continue to sweep new technologies into this technologically archaic statute.” The Chamber further stated that the Congress has yet to determine which new technologies should be unlawful under the TCPA. AFSA similarly posited that this new technology “has the potential to create a better customer experience” because the “customer has the opportunity to call the business back at a time that is convenient.”

In opposition to carving out a TCPA exception for ringless voicemail, a group of U.S. Senators wrote a letter to FCC Chairman Ajit Pai urging the Chairman “to protect consumers from unwanted, invasive, and abusive ringless voicemails.” The Senators argue that when the Congress passed the TCPA, it had only one goal: “whether at home or on their mobile phones, consumers should not be subjected to intrusive and unsolicited messages.”

This past week however, without explanation, the marketing company withdrew its petition. These events however, gave us an opportunity to look closely at where some of the interested parties place their support.

Although the most recent petition on the matter has been withdrawn, it may not be the end of the road for ringless voicemail at the FCC as a similar unresolved July 2014 petition filed by VoApps, Inc. remains pending. Nonetheless, telemarketers should consider the potential regulatory scrutiny and exposure to private TCPA litigation when determining whether to deploy ringless voicemail technology as part of their calling campaigns. TCPA complaints continue to be filed daily in federal and state courts across the country (a list of recent filings is available here; ringless technology might be a new breeding ground for enterprising plaintiffs’ attorneys.