Reaching Customers through Ringless Voicemail: A Legal Perspective
July 06, 2017
Ringless voicemail technology is a way for businesses to contact consumers without interrupting them on their mobile phones. Also known in the CRM industry as voice drops, v-drops, and direct drops, this technology allows businesses to leave messages on a consumer’s voicemail box without ever ringing the phone.
These calls don’t show up on phone records or missed call lists, and consumers are not charged for the messages. Given these characteristics, certain industries, such as debt collection, have begun adopting this technology in earnest. But many others have been slow to embrace the technology given the uncertainty surrounding its coverage under federal telemarketing laws and how customers may react to these messages.
From a legal perspective, the primary concern is whether ringless voicemails are covered under the federal Telephone Consumer Protection Act of 1991. TCPA, among other things, prohibits using an autodialer to call a consumer’s mobile phone without consent.
Congress enacted the TCPA in 1991 to address the costs and invasion of privacy that may result from unsolicited calls to mobile phones. The TCPA is enforced by the Federal Communications Commission, but also permits consumers to bring claims for violations, either as an individual or as a class. Consumers may seek $500 in damages per violation and up to $1,500 if such violation was willful or knowing. As there is no cap on the damages that may be sought, the TCPA provides a strong incentive for professional plaintiffs and their counsel to seek out new and untested calling technologies for their next big payday. If ringless voicemails are covered by the TCPA and users of the technology do not have recipient consent, there is little doubt that the litigation floodgates will open, big and wide.
It is unclear at this time whether ringless technology is covered by the TCPA, as neither the FCC (News - Alert) nor the courts have ruled on the issue. It is not that companies offering and using this technology haven’t been sued – they have– but they quickly settle claims to avoid an adverse ruling on their business model and exposure to multimillion-dollar jury verdicts. Also, one ringless voicemail marketer that filed a petition with the FCC to clarify whether its product was covered by the TCPA, then withdrew the petition in the eleventh hour. That lead many to speculate that the FCC was ready to issue a negative ruling on the technology.
Without guidance from the FCC and the courts, a legal analysis starts with understanding how the technology works and then applying it to the TCPA. Ringless voicemails send a call signal to the consumer’s telephone number to “busy” the line. In the very instant the telephone line associated with the number is “busy,” a voice message is routed directly to the voicemail server associated with the consumer’s telephone carrier. However, because the voicemail server is distinct from the consumer’s telephone line, technically, a “call” is never sent to the consumer’s telephone number.
As noted above, the TCPA generally prohibits “calls” to a telephone number assigned to a cellular telephone service without the recipient’s consent. Here, the message is not being placed on the consumer’s telephone line, but rather the voicemail server of the consumer’s telephone carrier. This is done without accessing the network associated with consumer’s telephone number. Arguably then, ringless voicemails may not meet the definition of a “call” under the TCPA, thus avoiding coverage. This conclusion would then permit companies to drop voicemails “on” a consumer’s mobile phone without their consent.
But applying a more common sense approach to the analysis, the technology might well appear to be covered by the law. The TCPA does cover automated telephone calls that leave a voicemail if the call is not answered. As such, accessing a person’s phone in some way for the purpose of leaving a voicemail might be considered to be covered as well since, functionally speaking, ringless voicemails and automated calls that leave voicemails are not that different. In fact, even from a more technical perspective, ringless voicemail technology relies on a call signal sent to the line associated with the consumer’s telephone number to “busy” the line, albeit briefly.
Moreover, ringless voicemails may be considered an invasion of a consumer’s privacy, an area of great importance to Congress when enacting the TCPA. While ringless voicemail messages do not cause a phone to ring, they do show up in the consumer’s voicemail box. This may be a nuisance to the recipient because the voicemail messages will take up space on the consumer’s voicemail server, cause the consumer to spend time (and perhaps cost) listening to the voicemail, and just be considered a general annoyance and invasion of privacy.
While not directly applicable, the Canadian Radio-television and Telecommunications agency considered the legality of ringless voicemails under the Canadian corollary of the TCPA. The CRTC concluded that ringless voicemails do fall under the do-not-call portion of the law, but not the full law because there was not enough evidence that they presented an “undue nuisance or burden.”
Although the TCPA is a more robust framework than the Canadian corollary, the question of its coverage under U.S. law will turn on the same inquiry: Do ringless voicemails invade subscribers’ privacy and amount to an unwanted nuisance? Until the FCC or a federal court addresses this issue head on, companies that sell or utilize ringless voicemail services must be aware of the risks involved in this emerging technology.
Marc S. Roth is a partner and Christine M. Reilly is a litigation partner at Manatt, Phelps and Phillips LLP. Neil Thakor, a litigation associate at the firm, assisted in the preparation of this article.
Edited by Alicia Young
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