A petition filed with the Federal Communications Commission (FCC) requested that the agency declare that the delivery of a voice message directly to a voicemail box does not implicate the Telephone Consumer Protection Act (TCPA). But in an interesting turn of events, the petition was withdrawn as this article was going to press.

All About the Message (AATM), a distributor of direct-to-voicemail insertion technology, signs up customers to use the software and platform for delivery of voicemail messages directly to consumers’ voicemail services. The technology creates a direct communication between the servers and the voicemail system of the carrier telephone company, the company explained, allowing the delivery of the voicemail without placing a direct call to the subscriber.

Concerned about the “cottage industry” of TCPA class actions, the company filed a petition with the FCC that ringless voicemail messages do not violate the statute.

“The TCPA does not impose liability for voicemail messages, delivered directly to a voicemail service provider, that never pass through a person’s cellular telephone line, and never result in a charge to the subscriber for the delivery of the message,” the petitioner argued. “Such conduct falls outside the plain statutory language and the Commission’s Regulations. What’s more, the Commission lacks the authority to regulate voicemail service.”

Title II of the Communications Act—which includes the TCPA—expressly does not regulate voicemail, AATM told the FCC. Voicemail is an enhanced service and not a telecommunications service, meaning the FCC’s regulations do not operate to limit, curtail or control voicemail service. That means the TCPA does not apply to direct-to-voicemail insertion technology, the petitioner argued.

The TCPA proscribes the use of certain equipment “to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using an automated telephone dialing system or an artificial or prerecorded voice … to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call,” pursuant to Section 227(b)(1)(A)(iii).

The voicemail deposit system does not involve making a call to a cellular telephone number and consumers are not charged for the delivery of the voicemail communications, the company pointed out.

“The statutory structure and the Commission’s implementing regulations are clear: TCPA liability exists only when an autodialed or prerecorded call is made to the mobile telephone number of a consumer or a telephone number of another wireless service for which the consumer is charged,” AATM wrote. “Voicemail service, and the process by which voicemail is deposited on a carrier’s platform for subsequent access by a subscriber, is neither a call made to a mobile telephone number nor a call for which a consumer is charged, and, indeed, is a service that is not regulated at all.”

Congress never intended to regulate direct-to-voicemail technology, AATM said, particularly as voicemail messages do not implicate the same concerns as autodialed telephone calls. “The act of depositing a voicemail on a voicemail service without dialing a consumer’s cellular telephone line does not result in the kind of disruptions to a consumer’s life – dead air calls, calls interrupting consumers at inconvenient times, or delivery charges to consumers – which the TCPA was designed to prevent,” the petitioner wrote. “Consumers have the freedom to dial into their carriers’ voicemail service platform to pick up the voicemail or not, to listen to it or not, as and when they see fit, and may do so without incurring any delivery charges.”

AATM urged the FCC to clarify that ringless voicemail messages do not violate the TCPA or, alternatively, exercise its authority to grant a retroactive waiver to AATM and its customers for use of the technology.

“Business should be permitted to communicate with consumers in a non-intrusive manner by inserting voicemail messages directly on voicemail servers, without dialing the consumers’ cellular telephone lines and without resulting in unwanted delivery charges to the consumers,” the petitioner argued. “Likewise, consumers should be afforded the opportunity to mitigate the number of intrusive calls to their cellular telephone lines by allowing businesses to communicate with them by voicemail, such that consumers can retrieve the business’s communications if, when, and how they see fit.”

An adverse ruling could subject AATM to “potentially substantial damages,” the company wrote, and could incentivize “plaintiffs to pursue potentially devastating class actions based on technical violations of an ambiguous rule – even though Congress never expressed an intention to regulate voicemail or to permit a private right of action arising from the receipt of voicemail.”

The FCC received thousands of comments on the petition, with business groups and advertisers throwing their support behind ringless voicemail technology and consumer advocates and some regulators speaking out against them. The state attorneys general of Kentucky, Massachusetts and New York filed a joint comment on the petition, arguing that the messages would increase costs for consumers with prepaid phones or limited minutes, and could result in consumers missing an important message if their voicemail becomes “clogged with unwanted messages.” Thousands of consumers, mostly opposing the petition, also filed comments with the FCC, demonstrating how strongly many consumers feel about this issue.

On June 21, 2017, AATM withdrew its petition. While the reasons are unknown, it’s likely that AATM, faced with a huge volume of comments in opposition to the petition, feared an adverse ruling was inevitable.

To read AATM’s petition to the FCC, click here.

Why it matters: This is the second ringless voicemail petition filed in recent years that has been withdrawn. Without an FCC ruling on this issue, whether ringless voicemail is covered by the TCPA remains unclear. While no ruling is better than an adverse ruling for companies utilizing this technology, great uncertainty remains. AATM likely thought the time was right for a favorable ruling given the change in leadership at the FCC, but the public outcry in opposition to permitting such communications may have made it rethink its strategy. For now, marketers using this technology should proceed with caution given the lack of clarity on the issue.