Does a prerecorded message delivered directly to the recipient’s voicemail constitute a “call” subject to the restrictions of the Telephone Consumer Protection Act (TCPA)? The Federal Communications Commission (FCC) is prepared to consider this issue for the first time and is soliciting comments on a petition for declaratory ruling filed by a company that provides delivery of voicemails to cell phone accounts without calling those numbers. Regardless of what the service is called—direct-to-voicemail (DTV), ringless voicemail or something else depending on the service provider—the process is generally the same. The technology allows a company to drop a prerecorded message into the voicemail box of a consumer (or the voicemail boxes of potentially millions of consumers) by connecting to a telephone company’s voicemail server via a landline. After the voicemail has been deposited by the DTV provider, the consumer receives a notification that a voicemail has been left for the consumer on the carrier-maintained voicemail box.

The petition argues that by going through the telephone company’s landline in this manner, the DTV provider avoids directly calling the consumer’s phone line, and thus the messages do not constitute autodialed or prerecorded calls made directly to a cellular phone subscriber. Since the consumer’s phone has never been called, and therefore there has been no charge to the consumer, the petition argues that these communications do not violate the TCPA. Depending on the consumer’s cell phone service, there may be a charge for accessing the voicemail, whether it is accessed by calling the cell phone company’s server or by receiving a transcript over text or email. The petition argues that any charges relating to a consumer viewing or listening to the voicemail would not be covered under the TCPA because the consumer took the affirmative step to access the voicemail box.

The TCPA prohibits autodialed or prerecorded non-marketing calls to cell phones without the express consent of the recipient. For telemarketing purposes, consent must be in writing and meet specific criteria. In responding to the DTV petition, the FCC will consider whether placing voicemails into customers’ voicemail boxes as described above constitutes a “call” under the TCPA. The FCC may also consider whether voicemail services should remain an “enhanced or information service” provided by telephone carriers, and therefore not governed by the FCC’s rules regarding cell phone carriers. The FCC has considered voicemail an enhanced service for nearly 40 years. DTV services are increasingly used, for example, by debt servicing companies, although a favorable FCC declaration could potentially expand the scope of DTV use.

If the FCC grants the declaration as requested, it will afford companies in a host of industries the ability to contact their customers and potential customers without risking liability under the TCPA. To date, the TCPA has been broadly interpreted. With the appointment of Ajit Pai as Commissioner and with a Republican-controlled Commission, this petition is being watched to see whether the FCC will take a narrower, more business-friendly approach to the TCPA than it has over the last several years under a Democratic-controlled Commission.

Comments to this petition must be submitted to the FCC by June 2, 2017.