On November 21, the Federal Communications Commission (FCC) issued a Declaratory Ruling and Order finding that companies must obtain consent before sending a “ringless voicemail” to a consumer’s phone because it constitutes a “call” made using an artificial or prerecorded voice and is subject to the provisions of the Telephone Consumer Protection Act (TCPA). “Ringless voicemails” are messages sent directly to voicemail inboxes without first triggering a call ringtone. The FCC found the calls should be regulated under the artificial or prerecorded voice prong of the statute, mooting any inquiry as to whether the “ringless voicemails” are sent with an automatic telephone dialing system.

Chairwoman Jessica Rosenworcel explained the reasoning behind the decision in her statement, “It [] doesn’t seem right that a call can make its way to your voicemail inbox without you having any way to stop it. On top of that, ringless voicemail can lead to the same kind of fraud that flourishes with scam robocalls. That’s why today the [FCC] is making it crystal clear that ringless voicemail is subject to the [TCPA] and our rules prohibiting callers from sending this kind of junk without consumers first giving their permission to be contacted this way.”

The Declaratory Ruling and Order is in response to a petition from All About the Message, LLC to declare that ringless voicemail is not subject to the TCPA and, therefore, does not require consumer consent. The company argued its ringless voicemail message is not a “call” because its proprietary software creates a landline-to-landline session directly to the telephone company’s voicemail server without charge to the subscriber or appearing as a received call on a bill. When the FCC sought comment on the petition, it received over 8,000 comments and replies, almost all in opposition.

The FCC concluded, “Congress intended the TCPA to protect consumers from the nuisance and invasion of privacy caused by such artificial or prerecorded voice messages. To complete a ‘ringless robocall,’ the originator of the call must direct the call to the voicemail associated with the wireless phone number. … [W]e find that the inclusion of additional information along with the wireless telephone number to route the call does not remove a consumer’s rights under the TCPA because ‘the effect on the recipient is identical.’ To do so would elevate form over function and is inconsistent with both the text and purpose of the TCPA.”