TCPAWorld has previously reported on judicial perspectives of ringless voicemail and the Telephone Consumer Protection Act (“TCPA”)
Now the campaign of former Georgia Senator David Perdue has asked the Federal Communications Commission (“FCC”) to “clarify that delivery of a voice message directly to a voicemail box through ringless voicemail (‘RVM’) technology does not constitute a ‘call’ subject to prohibitions on the use of an automatic telephone dialing system (‘ATDS’) or an artificial or prerecorded voice under Section 227(b)(1)(A(iii) of the Telephone Consumer Protection Act (‘TCPA’) or Section 64.1200(a)(1)(iii) of the FCC’s rules.”
In its Petition For Declaratory Ruling, dated July 2, 2021 (“Petition”), Perdue For Senate, Inc. (“Campaign”) – facing a TCPA lawsuit by a Georgia voter who alleges receipt of such a message without his consent – argues that “RVM technology does not make a ‘call’ any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other common carrier radio service” because
- “RVM transmissions do not constitute the functional equivalent of a call under the [TCPA].”
- “RVM technology does not use a wireless network to transmit messages.”
- “RVM technology does not bill potential voters for receiving voice messages.”
More specifically, the Campaign asserts “RVM technology establishes a direct server-to-server connection between the RVM vendor and the voicemail system that bypasses wireless networks.” Further, the technology does not “result in the same ‘annoyance to consumers’ as traditional phone calls…” because “[w]hen a voicemail is delivered… the phone does not ring.” Finally, “[w]ith RVM technology, no call appears on the recipient’s phone bill and no charge is assessed for delivery of the message.”
Aside from these technological distinctions, the Petition notes that RVM technology allows non-profit organization get-out-the-vote campaigns to provide important election messages to potential voters in a manner that respects and approves privacy. Citing the legislative history of the TCPA, the Campaign contends that “Congress recognized that calls made by non-profit organizations such as political campaigns do not implicate the same consumer privacy concerns as telemarketing calls.”
Listing several already-pending petitions for declaratory ruling filed at the FCC by VoAPPS, Inc. and All About the Message, LLC, the Campaign argues that “the applicability of the TCPA to RVM technology is an urgent and open compliance question for businesses and non-profit organizations alike.” As a result, the Campaign urges “the FCC… [to] resolve this uncertainty by clarifying that the TCPA does not apply to ringless voicemails.”
The FCC may seek comments on the Petition, but has not yet done so.
I guess the question to ask is if this technology existed at the time the TCPA was enacted, would Congress have made it illegal, just like any other type of pre-recorded voice call? The answer is undoubtedly, yes. Technology should not be used to subvert the purpose of the law. Can’t wait to see if public comments are invited.