Frank Kemp was working on his computer when his cellphone let out the sound of Mario — from Super Mario Bros. — collecting a coin. That signaled he had a new voice mail message, yet his phone had never rung.
“At first, I thought I was crazy,” said Mr. Kemp, a video editor in Dover, Del. “When I checked my voice mail, it made me really angry. It was literally a telemarketing voice mail to try to sell telemarketing systems.”
Mr. Kemp had just experienced a technology gaining traction called ringless voice mail, the latest attempt by telemarketers and debt collectors to reach the masses. The calls are quietly deposited through a back door, directly into a voice mail box — to the surprise and (presumably) irritation of the recipient, who cannot do anything to block them.
Regulators are considering whether to ban these messages. They have been hearing from ringless voice mail providers and pro-business groups, which argue that these messages should not qualify as calls and, therefore, should be exempt from consumer protection laws that ban similar types of telephone marketing.
But consumer advocates, technology experts, people who have been inundated with these calls and the lawyers representing them say such an exemption would open the floodgates. Consumers’ voice mail boxes would be clogged with automated messages, they say, making it challenging to unearth important calls, whether they are from an elderly mother’s nursing home or a child’s school.
If unregulated, ringless voice mail messages “will likely overwhelm consumers’ voice mail systems and consumers will have no way to limit, control or stop these messages,” Margot Freeman Saunders, senior counsel at the National Consumer Law Center, wrote in the organization’s comment letter to the Federal Communications Commission on behalf of more than a dozen consumer groups. “Debt collectors could potentially hijack a consumer’s voice mail with collection messages.”
The commission is collecting public comments on the issue after receiving a petition from a ringless voice mail provider that wants to avoid regulation under the Telephone Consumer Protection Act of 1991. That federal law among other things prohibits calling cellular phones with automated dialing and artificial or prerecorded voices without first obtaining consent — except in an emergency.
All About the Message, the ringless voice mail provider petitioning the commission, uses technology developed by another company, Stratics Networks. All About the Message’s customers use the service to deliver messages for marketing or other purposes right to consumers.
Will Wiquist, a spokesman for the F.C.C., said the commission would review the record after the public comment period closed and consider a decision. There is no formal timeline for resolving such petitions, and the commission cannot comment on the petition until a ruling is issued.
“They are all poised to launch a cannon full of calls to consumers,” said Peter F. Barry, a consumer lawyer in Minneapolis. “If there is no liability for it, it will be a new law that needs to get passed very quickly.”
Even consumers on the “Do Not Call” list could potentially be bombarded by telemarketers, advocates said. “The legal question is whether the people sending the messages would be required to comply with the Do Not Call list,” Ms. Saunders said. “We read the law to possibly not apply if they are not considered calls.”
This is not the first time the commission has received such a request. Nearly three years ago, it received a similar petition from VoAPPs, another voice mail technology company, which wanted to allow debt collectors to reach consumers through voice mail. But the petition was withdrawn before the commission could rule.
More specifically, All About the Message wants the F.C.C. to rule that its voice mail messages are not calls, and therefore can be delivered by automatic telephone dialing systems using an artificial or prerecorded voice. In its petition, the company argued that the law “does not impose liability for voice mail messages” when they are delivered directly to a voice mail service provider and subscribers are not charged for a call.
“The act of depositing a voice mail on a voice mail service without dialing a consumers’ cellular telephone line does not result in the kind of disruptions to a consumer’s life — dead air calls, calls interrupting consumers at inconvenient times or delivery charges to consumers,” All About the Message wrote. The company’s lawyer declined to comment.
If the commission rules against it, All About the Message said, it wants a retroactive waiver to relieve the company and its customers of any liability and “potentially substantial damages” for voice mail already delivered.
The company has reason to ask. Even though it started business just last year, one of All About the Message’s customers — an auto dealer — is already facing a lawsuit involving a consumer who received repeated messages. Tom Mahoney, who said he received four voice mail messages from Naples Nissan in 2016, is the lead plaintiff in a suit filed in United States District Court for the Southern District of Florida.
According to the suit, the parties in the case have reached a tentative agreement to settle all claims. Lawyers for both Mr. Mahoney and Naples Nissan declined to comment.
The suit said that Mr. Mahoney’s daughter had received similar messages — advertising zero-interest auto financing — and that neither he nor she had given the company consent.
Josh Justice, chief executive of Stratics Networks, said its technology — which can send out 100 ringless voice mail messages a minute — had existed for 10 years and had not caused a widespread nuisance. It was intended for businesses like hospitals, dentist’s and doctor’s offices, banks, and shipping companies to reach customers, for example, and for “responsible marketing.”
“The concept of ringless voice mail was to develop a nonnuisance form of messaging or a nonintrusive alternative to robocalls,” Mr. Justice said.
He contends that telemarketers should be able to use ringless voice mail messages as long as they do so responsibly — that is, skipping over consumers on the “Do Not Call” list, identifying who is leaving the message and giving people a way to opt out. But he said he did not believe that ringless voice mail needed to be subject to the same regulations as other calls — unless regulators find that the messages are generating complaints or being used inappropriately.
Consumer advocates and other experts argue that the courts and the F.C.C. have already established that technology similar to ringless voice mail — which delivered mass automated texts to cellphones — was deemed the same as calls and was covered by the consumer protection law.
“These companies are only spinning an incorrect interpretation of the regulations and the definition of the word ‘call,’” said Randall Snyder, a telecommunications engineering consultant and expert witness in more than 100 cases involving related regulations.
“Definitions of words in regulations and statutes are legal issues,” he said, “but there is certainly lots of common sense here.”
The Republican National Committee, which is in favor of ringless voice mail, goes as far as to argue that prohibiting direct-to-voice-mail messages may be a violation of free speech. Telephone outreach campaigns, it said, are a core part of political activism.
“Political organizations like the R.N.C. use all manner of communications to discuss political and governmental issues and to solicit donations — including direct-to-voice-mail messages,” the committee said in its letter to the commission.
For now, consumers who receive these messages can file complaints with regulators; they can also provide comments on whether they believe ringless voice mail should be subject to consumer protection rules.
But Ms. Saunders said blocking messages might be impossible: It is the phone that blocks calls, and these messages go right to voice mail. (More advice — on how to register for the “Do Not Call” list and how to avoid robocalls and texts — can be found on the F.C.C. website.)
Justin T. Holcombe, a consumer lawyer and partner at Skaar & Feagle in Woodstock, Ga., said the commission’s ruling would have implications for just about everyone. If ringless voice mail could avoid consumer protection rules, “it would be a free-for-all,” he said.
Mr. Kemp, the video editor in Delaware who received the ringless voice mail message, said in recent weeks that he had been targeted by robocallers advertising vehicle financing, even though he owns his truck outright. His strategy? He goes through the menu prompts, acting as if he were interested; when he finally reaches a live person, he angrily demands that his number be removed from the caller’s list.
“Hasn’t worked yet,” he said, “but it’s a good stress reliever.”