Ringless Voicemail Overview
Ringless voicemail allows a telemarketer to connect directly to the voicemail of a cell phone and leave a recorded message without the phone ever ringing. It makes use of the same technology used by text messaging. These voicemails can be delivered by transmission from one computer server to another, bypassing any dialing of a phone number.
Retailers have turned to ringless voicemail as an advertising tactic because they believe the practice does not violate the Telephone Consumer Protection Act (TCPA). The TCPA was enacted in 1991 to protect consumers from receiving telemarketing calls through the use of automatic telephone dialing systems and artificial or prerecorded voices.
The Act was revised in 2012 to remove an exception for cases in which the business and the consumer have an established business relationship. Now, telemarketers must receive prior written consent from a consumer before robocalling that person’s phone number. Just because you have done business with the retailer previously does not give the company a green light to call your cell phone for marketing purposes.
Car dealerships, credit card companies, health clubs, restaurants, department stores, airlines and hotel chains are among the businesses that have been known to participate in marketing efforts through ringless voicemail messages.
These businesses believe they are not violating the TCPA because the ringless voicemail process does not include the actual dialing of a phone number. Several businesses have gone as far as to petition the Federal Communications Commission (FCC) to certify ringless voicemail as a legitimate marketing tactic, making it exempt from TCPA rules.
Consumer advocates vigorously opposed that petition, arguing that allowing ringless voicemail would go against the purpose of the TCPA. In May 2018, the National Consumer Law Center said the ringless voicemail tactics were “invasive expensive, and annoying as calls and texts to cell phones. If left unregulated by the TCPA, telemarketing and debt collection messages could easily overwhelm the voicemail boxes of consumers.”
Susan Grant, director of consumer protection and privacy at the Consumer Federation of America called the ringless voicemail technology “a perverted use of the standard voicemail system” because it delivers a pre-recorded message to a cellphone’s voicemail system without providing the consumer a chance to answer or block the caller.
Federal Judge’s Opinion on Ringless Voicemail Marketing
Even though the FCC has not made a determination regarding TCPA regulation of ringless voicemail, at least one federal court has determined the marketing tactic may violate the TCPA.
In the first published court decision regarding the relatively new marketing method, U.S. District Judge Gordon J. Quist issued an opinion in July 2018 saying that Congress meant for the TCPA to cover advancing technologies that were covered by the term “any call” and that ringless voicemail qualifies as a “call” that is subject to TCPA authority.
Judge Quist said that the plaintiff’s phone would alert her she received a voicemail and she would need to play the voicemail to know what it was regarding, which means the end outcome is the same as if the phone would have been “called” by the business.
