The Federal Communications Commission (“FCC”) released an order finding that ringless voicemails constitute calls subject to the Telephone Consumer Protection Act (“TCPA”). Companies sending prerecorded or artificial messages directly to wireless consumers’ voicemail platforms will thus have to obtain consumer consent consistent with TCPA requirements. The ruling is effective immediately.

During the past eight years, three different petitions have been filed seeking a declaration that ringless voicemails do not qualify as calls because they are not sent directly to the consumers’ phone. All three petitions were subsequently withdrawn, but the FCC determined that a sufficient controversy exists for it to issue a declaratory ruling. Specifically, the FCC resolved the petition that had been filed in 2017 by All About the Message, LLC (“AATM”). The company had argued that its technology sends a landline to landlines session directly to the voicemail platform in the wireless carrier’s network without charge to the consumer and thus is not a call to a wireless telephone number.

In rejecting that argument, the FCC relied heavily on a 2015 order finding that Internet to phone texts messages were calls subject to the TCPA. The FCC found that, like internet-to-phone texting, ringless voicemail technology utilizes the wireless telephone number assigned to the consumer’s wireless phone and is associated with the voicemail account. The assigned telephone number serves as a unique and necessary identifier for the consumer.

The FCC also found that ringless voicemails meet the definition of a “call.” Citing a Ninth Circuit opinion, the FCC defined call as “communicat[ing]with or try[ing] to get into communication with a person by a telephone.” The FCC concluded that “ringless voicemails meet this definition by directing the messages by means of a wireless phone number and by depending on the transmission of a voicemail notification alert to the consumer’s phone (causing the consumer to retrieve the voicemail message).”

Finally, the FCC concluded that declaring ringless voicemails to be calls was consistent with the purpose and legislative history of the TCPA. According to the agency, ringless voicemails are unwanted messages that consumers have no control over, crowd out wanted messages and waste consumer time in listening to them.

Although the ruling was based on the technology used by AATM, the FCC warned that it applied to “any entity that provides ringless voicemails using the end user’s mobile telephone number to direct the ringless voicemail message to a mailbox associated with the end user’s mobile number.”

Entities utilizing ringless voicemail technologies to leave prerecorded messages must ensure that the have the requisite consent from the call recipient. A number of courts have already found that ringless voicemails are calls subject to the TCPA and thus many entities may already be in compliance. The FCC’s order creates a nationwide rule applicable beyond the jurisdiction of the individual courts.