Over the past few years, a new service known as ringless voicemail has been used for telemarketing and debt collection purposes.  Ringless voicemail vendors use technology that sends a voicemail message to a cellphone user without actually making a telephone call, so the user’s phone never rings and there is no call that can be answered.  Instead, the recipient of the ringless voicemail message can choose to respond to the message at his or her convenience or not at all.

Vendors tout the service as being compliant with the Telephone Consumer Protection Act (TCPA), 47 U.S.C. §227, because ringless voicemails are not actually calls.  However, as of the date of this advisory, the Federal Communication Commission (FCC), which promulgates rules under the TCPA, has not weighed in on whether ringless voicemails are compliant with the TCPA, and there has been no reported decision by any state or federal court on the issue.

Despite the unclear legal status of ringless voicemail, several state attorneys general, including the New York Attorney General, have indicated that they will treat the use of ringless voicemail as being subject to the TCPA, and will pursue the use of ringless voicemail without consent as a violation of the TCPA’s prohibition on the use of an artificial or prerecorded voice.  Consumer class action claims are likely to follow as TCPA claims have proven to be very lucrative for class action plaintiffs and their attorneys.

FCC Petitions

In an effort to clarify ringless voicemail’s status under the TCPA, two venders filed petitions with the FCC seeking declarations that their ringless voicemail services fall outside of the scope of the TCPA.

At the infancy of ringless voicemail, vender VoAPPs, Inc. filed a Petition for a Declaratory Ruling with the FCC that the delivery of a voicemail message directly to a voicemail box through the use of VoAPP’s DirectDROP Voicemail technology does not constitute a call that is subject to the TCPA’s prohibitions on the use of an automatic telephone dialing system (ATDS) or an artificial or prerecorded voice.  Petition for Expedited Declaratory Ruling, VoApps, Inc., CG Docket No. 02-278, (July 31, 2014) (Petition).  That petition remains undecided by the FCC.

More recently, on March 31, 2017, ringless voicemail vendor All About the Message, LLC (AATM) petitioned the FCC for a declaration similar to that sought by VoAPPs – that the delivery of a voice message directly to a voicemail box falls outside of the TCPA’s prohibitions on the use of an ATDS or an artificial or prerecorded voice.  Petition for Expedited Declaratory Ruling, All About the Message, CG Docket No. 02-278, (March 31, 2007) (Petition).  On April 18, 2017, the FCC requested comments on AATM’s petition and ultimately received many comments in support of the petition and even more in opposition.  On June 28, 2017, AATM withdrew its petition following the flood of comments in opposition and overall criticisms of ringless voicemail.

Mahoney v. TT of Pine Ridge

On January 9, 2017, a class action was initiated by Tom Mahoney against TT of Pine Ridge, Inc. (TT) in the United States District Court for the Southern District of Florida.  Mahoney v. TT of Pine Ridge, S.D. Fl. Case No. 9:17-cv-80029-DMM.  Mahoney alleged that TT violated the TCPA by using ringless voicemail provided by AATM.  In a coordinated filing, on March 31, 2017, TT filed a motion for summary judgment making the same arguments made to the FCC by AATM that same day.  Citing the AATM petition, TT also filed a motion for a stay of the class action proceedings until the issue was determined by the FCC.

On May 3, 2017, Mahoney and TT filed a joint notice of pending settlement and joint motion to stay the proceedings to finalize the settlement.  Given AATM’s voluntary withdrawal of its petition, it appears that AATM’s petition was simply a tactic to allow AATM’s customer to negotiate a settlement and to avoid a potential unfavorable decision on whether ringless voicemail is subject to the TCPA.

The Future for Ringless Voicemail

Although AATM’s petition to the FCC was successful in effectuating a settlement for its customer defending a class action, the petition brought the issue of ringless voicemail to the attention of regulators and plaintiffs’ class action attorneys and may have opened the floodgates for enforcement actions and litigation.

For companies doing business in New York state, two notable comments were filed in opposition to AATM’s petition: one jointly submitted on June 5, 2017, by the Attorneys General of Massachusetts, New York, and Kentucky, and one submitted on June 26, 2017, by New York’s Senior United States Senator, Charles E. Schumer.  The joint submission can be accessed at http://www.mass.gov/ago/docs/press/2017/reply-comments-concerning-ringless-voicemail.pdf, and Sen. Schumer’s submission can be accessed at https://www.schumer.senate.gov/newsroom/press-releases/schumer-reveals-robocalls-could-get-even-worse-if-fcc-sides-with-telemarketers-and-allows-new-ringless-voicemail-technology-to-flood-your-phone-senator-rails-against-fed-rule-change-before-its-too-late-enough-is-enough-.  AATM’s petition and ringless voicemail have also received significant negative attention in New York newspapers.

AATM’s ensuing withdrawal was welcomed by New York Attorney General Eric Schneiderman, who released the following statement:

“New Yorkers already face a barrage of unwanted phone solicitations. We certainly don’t need the federal government to make it even easier for companies to spam families with costly and unsolicited ringless voicemails. The withdrawal of this petition marks a victory for New Yorkers – and my office will continue to stand up for consumers and fight intrusive robocalls.”

The full press release can be accessed at https://ag.ny.gov/press-release/ag-schneiderman-welcomes-withdrawal-ringless-voicemail-petition.

Attorney General Schneiderman’s statement signals a targeted offensive against companies who use ringless voicemail, and New York will likely be leading the fight against this service.

Conclusion

While we expect enforcement actions and class action lawsuits to follow the recent attention ringless voicemail has received following AATM’s petition, the status of ringless voicemail’s legality remains unclear.  There are arguments to be made for ringless voicemail being outside of the scope of the TCPA, but those arguments remain untested.  Although the FCC continues to focus on other aspects of the TCPA (the November 2017 agenda included a vote allowing telephone companies to block robocalls from “spoofed” or disguised numbers), as of the date of this  advisory, the FCC has not taken a position on whether ringless voicemail is subject to the TCPA.