Almost every American is familiar with the annoyance of receiving a random voicemail notification even though their phone never a received call. These voicemails are often long-winded robotic recordings inquiring about the phone user’s credit card debt or car loans that do not actually exist. These spam calls are commonly known as a ringless voicemails(“RVM”). If you’re tired of these irritating messages, you are in luck because on February 2, 2022, the Federal Communications Commission (FCC) Chairwoman, Jessica Rosenworcel, announced that RVMs are now outlawed under the Telephone Consumer Protection Act of 1991 (“TCPA”). This proposed Declaratory Ruling and Order follows a petition filed in 2017 by the robocall company, All About the Message, which asked the FCC to declare RVMs outside the purview of the TCPA. The petition was likely filed in response to several conflicting court rulings, some of which found RVMs to violate the TPCA. The proposal by the FCC comes after years of mostly unsuccessful attempts to regulate and eradicate unwanted spam calls to cell phones. In 2021 alone, Americans received an astounding 50 billion robocalls.
The TCPA was originally passed in 1991 as an amendment to the Communications Act of 1934. This came at a time when only a select few Americans had cell phones, and primarily used landlines for calling purposes. The TCPA was designed to stop unsolicited telemarketing calls to American households that took up the limited capacity of landline phones without the homeowner’s consent. In Section Two of the TCPA, Congress announced its findings; “[m]any consumers are outraged over the proliferation of intrusive, nuisance calls to their homes from telemarketers” and indicated that the calls without express consent were “an invasion of privacy” which also interfered with interstate commerce. The goal of the TCPA was to protect consumers from unwanted contact by telemarketers and prohibit non-emergency callers from using a dialing system or an artificial/prerecorded message. The TCPA also declared that the FCC would be given flexible control over the Act to design rules that limit the calling ability of telemarketers, which included a restriction on the time of day the calls could be made. The FCC is tasked with weighing the interests of Americans to stop the intrusive calls while also considering the impact on First Amendment free speech protection.
RVMs have been lauded by proponents as TCPA proof. It was argued in the past that a voicemail doesn’t necessarily qualify as a “call” under the TCPA since a phone owner does not actually receive a call, just the voicemail afterwards. Unfortunately, since phones do not receive the “call”, the number cannot be blocked either. Even individuals included on Do Not Call lists can be accessed by companies using RVMs.
These calls pose a serious threat to populations that are traditionally more susceptible to scams, such as immigrants with language barriers and older individuals who may be unfamiliar with these practices, because scammers often impersonate lending institutions or government agencies. For example, a common trope is the offer for an extended car warranty, or an offer to manage outstanding debt. Some scams even impersonate the IRS around tax season. Very few people will ignore calls purportedly coming from government agencies, and upon calling back, the scammers can extract confidential personal information used for any number of fraudulent purposes. In addition to the dangers of scams, consumers also consider these calls intrusive and a privacy over-step.
Proponents of RVMs argue that RVMs should not be outlawed under the TCPA because they do not pose the same concerns that originally spawned the creation of the TCPA. In contrast to landlines, cell phone voicemails can easily be cleared, and the RVMs do not block other incoming calls. RVMs do not cost the cell phone owner money, and they do not take up much storage in the phone user’s mailbox. Additionally, some supporters of RVMs argue that the ban on RVMs could constitute an overstep by the FCC and qualify as a violation of free speech under the First Amendment.
It is also important to recognize that RVMs are used by entities other than scammers and fraudsters, including politicians running competitive campaigns who benefit from the ability to reach constituents quickly and effectively. David Perdue, a former Georgia Senator, as well as members of the Republican National Committee have pushed for the exclusion of RVMs from TCPA applications. Unfortunately for those using RVMs for less nefarious purposes, they too will be subject to new restrictions because of the actions of scammers.
In her recent declaration, Chairwoman Rosenworcel seems to strongly agree with the arguments of RVMs’ non-application to the TCPA. Rosenworcel did not differentiate between good and bad actors, nor did she address the First Amendment concerns in her declaration. In her announcement, Chairwoman Rosenworcel stated:
“[r]ingless voicemail[s] can be annoying, invasive, and can lead to fraud like other robocalls—so it should face the same consumer protection rules. No one wants to wade through voicemail spam, or miss important messages because their mailbox is full. This FCC action would continue to empower consumers to choose which parties they give permission to contact them.”
In short, telemarketing companies, small businesses, and politicians may be negatively impacted by the FCC ruling that RVMs violate the TCPA. The irony of a telemarketing company’s petition in support of RVMs leading to their downfall will likely not be lost on the previous petitioners. On the other hand, it’s unlikely that consumers will have much sympathy for the adverse effects felt by telemarketing companies and politicians. Your average American probably will not think twice about the lack of robocalls in their inbox once RVMs are eradicated.
Student Bio: Claire Remillard is a second-year law student at Suffolk University. Claire is a Staffer on the Journal of High Technology Law, the Vice President of the Health and Biomedical Law Society, and the Assistant Coordinator of Mentorship for the Women’s Law Association. Claire received a bachelor’s degree in Cellular and Molecular Biology from West Chester University.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
