Rule2022-26673
Telephone Consumer Protection Act of 1991; Petition for Declaratory Ruling of All About the Message, LLC
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 14, 2022
Effective
November 21, 2022
Issuing agencies
Federal Communications Commission
Abstract
In this document, the Federal Communications Commission (Commission) finds that "ringless voicemail" to wireless phones requires consumer consent because it is a "call" made using an artificial or prerecorded voice and thus is covered by of the 1991 Telephone Consumer Protection Act (TCPA). The Commission denies a request from All About the Message, LLC (AATM) to declare that ringless voicemail is not subject to of the TCPA and the Commission's implementing rules. The Commission also denies AATM's alternative request for a retroactive waiver of the Commission's rules.
Full Text
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<title>Federal Register, Volume 87 Issue 239 (Wednesday, December 14, 2022)</title>
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[Federal Register Volume 87, Number 239 (Wednesday, December 14, 2022)]
[Rules and Regulations]
[Pages 76425-76427]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-26673]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 64
[CG Docket No. 02-278; FCC 22-85; FRID 116788]
Telephone Consumer Protection Act of 1991; Petition for
Declaratory Ruling of All About the Message, LLC
AGENCY: Federal Communications Commission.
ACTION: Declaratory ruling and order.
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SUMMARY: In this document, the Federal Communications Commission
(Commission) finds that ``ringless voicemail'' to wireless phones
requires consumer consent because it is a ``call'' made using an
artificial or prerecorded voice and thus is covered by of the 1991
Telephone Consumer Protection Act (TCPA). The Commission denies a
request from All About the Message, LLC (AATM) to declare that ringless
voicemail is not subject to of the TCPA and the Commission's
implementing rules. The Commission also denies AATM's alternative
request for a retroactive waiver of the Commission's rules.
DATES: The Declaratory Ruling and Order was effective November 21,
2022.
FOR FURTHER INFORMATION CONTACT: Mika Savir of the Consumer Policy
Division, Consumer and Governmental Affairs Bureau, at
<a href="/cdn-cgi/l/email-protection#80ede9ebe1aef3e1f6e9f2c0e6e3e3aee7eff6"><span class="__cf_email__" data-cfemail="d0bdb9bbb1fea3b1a6b9a290b6b3b3feb7bfa6">[email protected]</span></a> or (202) 418-0384.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's
Declaratory Ruling and Order, FCC 22-85, CG Docket No. 02-278, adopted
on November 14, 2022, and released on November 21, 2022. The full text
of this document is available online at https://
[[Page 76426]]
www.fcc.gov/document/fcc-declares-ringless-voicemails-are-subject-
robocalling-rules. To request this document in accessible formats for
people with disabilities (e.g., Braille, large print, electronic files,
audio format) or to request reasonable accommodations (e.g., accessible
format documents, sign language interpreters, CART), send an email to
<a href="/cdn-cgi/l/email-protection#5c3a3f3f696c681c3a3f3f723b332a"><span class="__cf_email__" data-cfemail="1c7a7f7f292c285c7a7f7f327b736a">[email protected]</span></a> or call the FCC's Consumer and Governmental Affairs
Bureau at (202) 418-0530 (voice).
Synopsis
1. In this document, the Commission finds that ``ringless
voicemail'' to wireless phones requires consumer consent because it is
a ``call'' made using an artificial or prerecorded voice and thus is
covered by the 1991 Telephone Consumer Protection Act (TCPA). The
Commission therefore denies a request from All About the Message, LLC
(AATM) to declare that ringless voicemail is not subject to the TCPA
and the Commission's implementing rules. The Commission also denies
AATM's alternative request for a retroactive waiver of the rules.
2. AATM filed its petition for a declaratory ruling on March 31,
2017, asking the Commission to find that delivery of a voicemail
message directly to a consumer's cell phone voicemail is not covered by
the TCPA and therefore that AATM does not need consumer consent for the
ringless voicemail messages. AATM argued that its ringless voicemail
message is not a ``call'' and therefore the TCPA should not apply.
AATM's position was that the ringless voicemail service, and the
process by which the ringless voicemail is deposited on a carrier's
platform, is neither a call made to a mobile telephone number nor a
call for which a consumer is charged and, therefore, is a service that
is not regulated.
3. The Commission found that AATM's ringless voicemail message is a
call to the consumer's wireless number and prerecorded voice messages
sent via this technology are, therefore, subject to the TCPA. The
Commission first found that AATM's ringless voicemail constitutes a
``call'' subject to the TCPA's protections for the same reasons the
Commission previously found computer-generated text messages sent to a
carrier's text server to be calls for purposes of the TCPA.
4. The Commission concluded previously that text messaging is a
call for TCPA purposes when initiated with an autodialer, stating that
the TCPA ``encompasses both voice calls and text calls to wireless
numbers including, for example, short message service (SMS) calls,
provided the call is made to a telephone number assigned to such
service.'' In 2015, the Commission reiterated that finding and found
that internet-to-phone text messages, which are sent to a carrier's
server then routed to a consumer's phone, are calls for purposes of the
TCPA because callers address these computer-generated text messages to
a consumer's wireless telephone number.
5. The Commission concluded that use of the wireless phone number
(either as part of an email string or by entering the phone number on a
web portal) satisfied the TCPA's requirement that the call be ``to any
telephone number assigned to a [wireless] service'' because the
wireless telephone number is a necessary and unique identifier for the
consumer. The Commission concluded that ``by addressing a message using
the consumer's wireless telephone number . . . and sending a text
message to the consumer's wireless telephone number, the equipment
dials a telephone number and the user of such technology thereby makes
a telephone call to a number assigned to a wireless service as
contemplated in section 227(b)(1) of the Act.''
6. The Commission stressed that, ``[f]rom the recipient's
perspective, internet-to-phone text messaging is functionally
equivalent to phone-to-phone text messaging,'' and that, ``the
potential harm is identical to consumers; unwanted text messages pose
the same cost and annoyance to consumers, regardless of whether they
originate from a phone or the internet.'' The Commission reasoned that
the mere fact that an extra step was involved in dialing a call--in
that case merely adding a domain to the telephone number--was not
enough to deprive mobile customers of the TCPA's protections as ``the
effect on the recipient is identical.'' To hold otherwise ``would
elevate form over substance, thwart Congressional intent that evolving
technologies not deprive mobile consumers of the TCPA's protections,
and potentially open a floodgate of unwanted text messages to wireless
consumers.''
7. AATM's ringless voicemail is identical in function to the
internet-to-phone texting the Commission previously found subject to
the TCPA. In the case of internet-to phone text messaging, the
telephone number assigned to the consumer serves as a necessary and
unique identifier. Similarly, the telephone number assigned to a
consumer's wireless phone and associated with the voicemail account is
a necessary and unique identifier for the consumer in the ringless
voicemail context. One expert states that the ``steps involved in
sending a [ringless voicemail] message are substantially the same as
the technology used and steps involved in sending both mass text
messages and text to email addresses text messages'' and that ``[f]rom
an engineering and technical perspective, this software delivery model
that enables multiple remote customers to deliver [ringless voicemail]
voice messages en masse to cellular subscribers is precisely the
identical software delivery model that mobile messaging companies use
to enable their customers to deliver text messages en masse to cellular
subscribers.'' Neither AATM nor any other commenter challenges the
description of the technology used to deliver the ringless voicemail
messages or the assertion that it is essentially identical to the
technology used to deliver internet-to-phone text messages.
8. This finding is consistent with the ordinary meaning of
``call.'' The TCPA does not define ``call'' and courts have turned to
dictionary definitions to determine its meaning, e.g., Webster's Third
New International Dictionary defines a call as ``to communicate with or
try to get into communication with a person by a telephone.'' Ringless
voicemails meet this definition by directing the messages by means of a
wireless phone number and by depending on the transmission of a
voicemail notification alert to the consumer's phone (causing the
consumer to retrieve the voicemail message). This finding is also
consistent with the legislative history and purpose of the TCPA.
9. The Commission also rejected AATM's argument that ringless
voicemail is non-invasive. Consumers cannot block these messages and
they experience an intrusion on their time and their privacy by being
forced to spend time reviewing unwanted messages in order to delete
them. The consumer's phone may signal that there is a voicemail message
and may ring once before the message is delivered, which is another
means of intrusion. Consumers must also contend with their voicemail
box filling with unwanted messages, which may prevent other callers
from leaving important wanted messages. By contending that it is not
placing calls, AATM would deny consumers the protection of the TCPA's
consent requirement. The Commission found that, as a matter of both
statutory interpretation and policy, such ringless voicemail calls are
subject to the TCPA.
10. The TCPA contains ``unique protections'' for wireless
consumers. The Commission was unconvinced that
[[Page 76427]]
it should undermine the protections against robocalls that the statute
provides to consumers by granting a waiver to AATM. AATM has not
demonstrated any special circumstances that warrant a waiver or that a
waiver of the Commission's rules is in the public interest. AATM is not
precluded from using its ringless voicemail service, but it must do so
in accordance with the TCPA.
Federal Communications Commission.
Marlene Dortch,
Secretary.
[FR Doc. 2022-26673 Filed 12-13-22; 8:45 am]
BILLING CODE 6712-01-P
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