[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 [www.gpo.gov]
[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 
[email protected] 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 
[email protected] 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