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A few months ago, a client asked if “ringless voicemail” is legal. Before I could answer, I first had to know what he was talking about. “It’s the hottest new thing in telemarketing,” he said, “a sure money maker.” And he wanted to begin offering it to his clients as soon as possible. Now that I’m educated, I can break the secret to you if you still happen to be in the dark. Then I will try to answer my client’s question for you as well.

Ringless voicemail uses a technology that permits a voice message to go directly to a consumer’s mobile voicemail box via a server -to- server communication, without a call being made to the consumer’s phone and without a charge. A call using the technology bypasses the wireless cellular network and instead is routed over a business landline to a business-class number assigned to the voicemail server of the voicemail service provider. When the call has landed on the voicemail server, the voicemail message is then delivered to the consumer’s spot on the server. The consumer will then receive an alert that he has a voicemail. No call appears on the consumer’s phone bill and no charge is assessed for delivery or retrieval of the voicemail.

As described, ringless voicemail is a true win-win innovation for business, including telemarketers, and the consumer. Sellers can use the latest advances in telecommunications technology to make their marketing pitches to consumers, while respecting their wishes not to bombarded with calls at all hours and in all places, and leaving it up to them – at no cost – to choose whether and when to retrieve and listen to the voicemail. With this autonomy, the recipient has the ability to consider the content of the message without the intrusion of an unsolicited phone call. The result could be improved response rates, which could lead to more conversions and a better experience for both merchant and customer.

Despite these obvious benefits and efficiencies, is ringless voicemail legal? The short answer is probably so – but not definitely. The law to examine, of course, is the Telephone Consumer Protection Act (TCPA) and its implementing regulations promulgated by the Federal Communications Commission (FCC). The TCPA prohibits any non-emergency call, made without prior express written consent, using an auto-dialer or an artificial or prerecorded voice to any wireless service, or other service for which the called party is charged for the call. More specifically, and significantly, it prohibits autodialed and prerecorded message calls made to a telephone number assigned to a wireless service, rather than to a telephone.

As explained above, ringless voicemail is transmitted via a business landline between servers, rather than from an auto-dialer to a telephone number, and is delivered at no charge to the recipient. It is delivered not to a wireless service, but to a voicemail service. Voicemail also has been traditionally classified as an “enhanced or information service,” rather than as a “common carrier” service, like cellular telephone service. It thus has not been subject to FCC regulation, even if the provider of the voicemail service is a common carrier. For these reasons, ringless voicemail should fall outside the proscriptions of the TCPA and, in particular, its prior express written consent requirement, which has dealt a serious blow to outbound telemarketing, including text marketing, since it took effect in 2013.

While ringless voicemail should be allowed, neither the FCC nor a court has given it the official stamp of approval yet. A petition filed by a ringless voicemail provider seeking an expedited ruling that it is exempt from the TCPA has been pending before the FCC without action for more than two years, despite the taking of public comments, a paucity of complaints, and apparently positive meetings between industry representatives and FCC officials. The lack of class action activity on the issue – in the midst of what otherwise is an ongoing epidemic of TCPA litigation – suggests plaintiffs’ lawyers don’t see much upside in a legal attack on ringless voicemail, at least until and unless the FCC declares it is or could be subject to the TCPA.

With the approaching presidential election and a new administration, it seems doubtful the FCC will decide the pending petition, or otherwise opine on the legal question it presents, any time soon. Until it does, and affirmatively declares ringless voicemail to be either TCPA-exempt or TCPA-compliant, many marketers could be gun shy about using it. Given the advantages and protections this innovative technology offers to businesses and consumers alike, the FCC should make it a priority to decide its legality as early as possible in 2017 – if not before.