Telemarketers often ask “is ringless voicemail legal.”
Well, the first ringless voicemail message Telephone Consumer Protection Act decision says no.
Ringless voicemail employs a technology that permits a voice message to be placed directly upon a consumer’s mobile voicemail box, without “a call” or a charge. No call appears on a consumer’s telephone bill.
Over the last few years, there has been much discussion regarding the legality of ringless voicemail, including various petitions filed with the FCC by providers seeking an opinion on whether the technology is exempt from the TCPA. A federal judge in Michigan – in the matter of Saunders v. Dyck O’Neal – is the first federal or state judge to rule on this issue, and he did so by concluding that ringless voicemail is, in fact, a “call” regulated by the TCPA. In Dyck O’Neal, the defendant allegedly used the VoApps system to leave numerous ringless voicemail messages on plaintiff’s voicemail in connection with an outstanding debt.
Although ringless voicemails are not connected to any common carrier “call,” the court opined that Congress’ intended to prohibit “any call.” The Court also considered that because the plaintiff received and listened to the notifications, practically speaking, the effect is the same. The court did not buy plaintiff’s argument that ringless voicemail is an exempt “enhanced information service.” The judge also cited to past legal precedent holding that unanswered calls and voicemails are “calls” under the TCPA.
Unless this matter is successfully appealed or other courts chime in with a more business friendly analysis, marketers should ensure that they have obtained lawful prior express written consent when implementing ringless voicemail technology.
Informational purposes only. Not legal advice. Always seek the advice of an attorney. Previous case results do not guarantee similar future result. Hinch Newman LLP | 40 Wall St., 35th Floor, New York, NY 10005 | (212) 756-8777