What are Ringless Voicemail Drops?
The "ringless" aspect of an RVM drive process refers to the fact that the call does not ring the targeted phone. This can mean either that the call was "answered," but the phone didn’t ring, or that the call was terminated prior to the target’s phone even ringing. In most cases, it means that no phone is actually rung, and it appears the voicemail messages are simply delivered into the target’s voicemail inbox.
In most cases, a voicemail message is "deposited" in a target’s voice mail inbox without ringing the phone. The process works as follows: When a call is made, a Remote Call Manager position telephone applications, such as Skype, or some other software, trigger the call script once the call is answered or the call is terminated. This RCM operating position makes a broadcast transmission to the service provider, which is normally done via VoIP, that includes: The RVM provider , which normally captures the originating number, first processes the call to determine if it is valid, meaning delivery of the recording is legal under applicable statutory provisions such as the Telephone Consumer Protection Act. All of the telephonic networks that provide RVM services have their own built in carrier switching centers. This movement of calls performs two primary tasks: When an RVM call is initiated, a call is propagated throughout the telephonic network, and it pings all network elements to determine if the call can be delivered. After this process, the call is either delivered to the target or it fails to deliver. If a call cannot be completed and no message is delivered, no charge for the operation is made. In this case, this can apply for numerous reasons, including busy lines, erroneous targets numbers and terminals that are on the move or powered off.
Telemarketing Law
The legal framework for telemarketing is primarily governed by the Telephone Consumer Protection Act of 1991 ("TCPA"), 47 U.S.C. § 227 and its accompanying regulations, 47 C.F.R. § 64.1200. The TCPA prohibits the use of automatic telephone dialing systems and pre-recorded voice messages without the prior express consent of the person to be called. While certain safe harbors exist (such as debt collection calls to a debtor on their cell at their request, or telemarketing calls to someone who has provided the caller with their phone number), violating these rules can lead to significant trouble. For example, violations of the TCPA can lead to either a fine of up to $500 per violation or triple the amount of damages to which a plaintiff is entitled for that violation.
Participants in the telemarketing space have been quick to argue that because ringless voicemail technology does not require the caller to call a person’s cell phone number and/or leave them a voice message, then it is not subject to the TCPA. A number of courts have already rejected this argument, noting that the TCPA expressly defines "call" to include leaving a voicemail message. The underlying logic for these courts was that where the TCPA’s rules are triggered by "call," it doesn’t matter whether or not the TCPA’s rules also require the message be made into a voicemail left on a person’s phone. As such, any attempt in the future by industry participants to argue that ringless voicemails are not subject to the TCPA should similarly be rejected. Note, however, that no federal appellate court has specifically ruled on the applicability of the TCPA to archiving and voicemail drop technology.
In an effort to crack down on unwanted telemarketing calls, Congress also implemented the National Do Not Call Registry ("DNC") in the TCPA. The DNC is a web-based system that allows residential consumers to communicate their preference not to receive unwanted telemarketing sales calls from any seller or telemarketer. Under the TCPA, a national do-not-call list must be updated at least every three years and telemarketers must pay a fee to access the list. Telemarketers must obtain the DNC list from the FTC and consult it to avoid calling individuals who have registered on the DNC. The TCPA also restricts telemarketers from initiating a telephone solicitation before 8 a.m. or after 9 p.m. (local time at the called location) and requires telemarketers to maintain and adhere to "Do Not Call" lists.
Businesses who plan on using ringless voicemail technology must be mindful of the TCPA’s rules on robocalls, pre-recorded voice messages, dialing equipment, and telemarketing calls. They should especially be mindful of the downstream liability of vendors. While vendors may be protected to some extent by contract provisions, the TCPA provides a private right of action directly against those placing or initiating calls in violation of the law, and as such, third party vendors cannot necessarily rely solely on other parties to be responsible for compliance.
Are Ringless Voicemail Drops Lawful?
The use of ringless voicemail drops is legal in most jurisdictions. In the introduction to the TCPA, it states that "[the Act] does not apply to the transmission of a facsimile to a telephone facsimile machine." As technology has advanced, the same reasoning has been applied to ringless voicemail drops. All it takes is a quick bit of legalese from a submission filed with the FCC for it to be clear: "Sending a voicemail to a mobile phone utilizing an Advanced Voicemail System [ringless voicemail] is not a call to the mobile phone, thus the TCPA does not apply to such a message."
Defendants who’ve been sued have made compelling arguments to this effect: "The TCPA was designed to address the ‘irritating and costly problem of the increasing number of intrusive and unwanted telephone calls.’ As the Commission and Congress have acknowledged, one way to reduce the number of unwanted calls is to provide consumers with new, more effective subscriber control over who contacts them and on what subject. The ringless voicemail system at issue here provides more effective—and less intrusive—control than current alternatives. To the extent that this balance is not perfect, the Commission can better advance its goal of reducing the number of unwelcome calls by instituting a regime seeking to reach a better balance, rather than simply banning more effective technology." (emphasis added)
Other proponents state simply: "The core purpose of the TCPA was to protect consumers from receiving unwanted marketing calls on their home phones. ‘The [TCPA] struck a clear balance designed to promote legitimate commercial communication and at the same time, to restrict the flow of junk faxes which can be an intrusive ‘headache’ to businesses." Given that the TCPA was passed to limit home phone calls, and given that a ringless voicemail drop does not cause the phone to ring, there’s no intrusion to protect against. Thus, the TCPA is not applicable to ringless voicemail drops.
On the other hand, opponents contend that theorem do not really apply to TCPA cases. They argue that "the goal of the TCPA is to reduce the number of unwanted telemarketing calls to both mobile and residential lines," and that their clients have "suffered ascertainable harm, given the significant number of calls received and the time expended by those individuals listening to the messages." Thus, they argue that TCPA applies.
The industry continues to evolve, and ringless voicemail systems are being used more frequently. The question of legality is largely settled, but the arguments between the two sides will always aim to reach a compromise.
Ongoing Litigation
There is currently a wide range of challenges that companies using ringless voicemail technology in their telecom marketing efforts must face, with some businesses even facing legal action because of it. In 2017, a Missouri class action lawsuit was filed against a Texas-based debt collection service that sent out ringless voicemails. The complaint alleged violations of the Telephone Consumer Protection Act (TCPA) for phone calls to both cell phones and residential landlines without the consent of the individuals . It was later reported that the plaintiffs had accepted a class action settlement offer of $340,000, so it begs the question: is this a sign of more lawsuits by consumers who find the technology disruptive? Even if the challenge has been settled, the FTC and FCC combined for a statement warning companies to avoid using ringless voicemail in its current form. Now, there are still at least four pending class action lawsuits against companies that have used ringless software from multiple states, including Texas, California, Nevada, and Pennsylvania. However, those lawsuits have not reported rulings as of yet. Across the country, states are also looking to take on the issue, and many are working on legislation that would make ringless voicemail contact illegal.
Compliance Best Practices for Companies
Businesses can use ringless voicemail drops effectively, but they must do so within the boundaries of the law to avoid costly fines and reputation damage. Here are some tips to consider: Always obtain consent: The best way to ensure compliance is to obtain express consent from the recipients before sending any ringless voicemail messages. This may involve integrating consent mechanisms into your data collection processes, such as through sign-ups on your website or opt-in features on your mobile app. Honour Do Not Call (DNC) lists: Always scrub your contacts against the National Do Not Call Registry as part of your compliance procedures. The period for the National DNC list and an internal company-specific DNC registry is five years. Be aware of state-specific regulations: While the TCPA governs telemarketing and does not specifically apply to ringless voicemail, there may be state telemarketing laws that are applicable. Stay informed on regulatory changes: The regulatory landscape surrounding telemarketing and ringless voicemail continues to evolve. Businesses should keep abreast of any new rulings or changes in the law that may affect their use of this technology. Educate staff: Make sure that all personnel involved in telemarketing campaigns understand the requirements and implications of the TCPA and other relevant regulations.
Looking Ahead
Given the current state of the law, ringless voicemail drops remain in a legal gray area. Courts have not yet interpreted the TCPA’s definition of a text message. Moreover, in the wake of several recent TCPA settlements notwithstanding the FCC’s 2015 Ruling, the politics surrounding the TCPA’s regulation of telemarketing continues to shift. Finally, telemarketing regulation must contend with the inevitable rise of 5G and the law’s most fundamental challenge present since the enactment of the TCPA – technological innovation. In March 2018, GOP leadership announced plans to revisit legislation that will update the TCPA decade-old TCPA. Even if the House fails to revisit the TCPA, the Xevo ruling may inspire a congressio-nal attempt to provide a legislative fix . Courts and policymakers will need to weigh the complicated balance between recognizing a modern interpretation of a text message without upending the TCPA’s consumer consent framework. As technologies are created and deployed, so too are regulatory challenges. For example, it was less than 10 years ago when call robocall-blocking applications became widely available. In 2003, a handful of robocall-blocking apps were offered for download versus 21 in 2018. As courts address ringless voicemail drops, call blocking applications will follow suit. Service providers have begun offering applications that block ringless voicemail and spoofed numbers claiming to belong to reputable organizations. Other service providers offer "spoof parts" – "sit tight, [redacted] will call you back on [redacted]." As long as innovators continue to develop apps to combat unwanted communications, the TCPA will likely remain a litigation target.