You might start getting many more voicemails if Republicans get their wish.

A marketing company called All About the Message recently petitioned the Federal Communications Commission for a ruling that would prevent anti-robocall rules from being applied to "the delivery of a voice message directly to a voicemail box" without ringing the recipient's phone. These ringless voicemails are already happening, but their legal status is unclear.

That petition was filed in March, and last week the Republican National Committee (RNC) asked the Federal Communications Commission to approve the petition. The petition asks the FCC "to declare that the delivery of a voice message directly to a voicemail box does not constitute a call that is subject to the Telephone Consumer Protection Act ('TCPA') and its implementing rules," the RNC wrote. "The RNC supports this clarification, which is consistent with the language of the TCPA."

An FCC finding against the petition "would not only restrict an important form of non-intrusive communication; it would have serious consequences for the First Amendment rights of those engaged in political communication via telephone," the RNC also wrote. The Republican group told the FCC that it uses "all manner of communications" to discuss political and governmental issues and solicit donations, "including direct-to-voicemail messages."

The US Chamber of Commerce and American Financial Services Association are also pushing the FCC to approve the petition. The Democratic National Committee has not weighed in on the proposal.

The TCPA prohibits non-emergency calls made with auto-dialers, artificial voices, or prerecorded voices without the "prior express consent of the called party." There are exceptions for charities and limited exceptions for political campaign robocalls. Political robocalls are "permissible when made to landline telephones, even without prior express consent," but "prohibited to cell phones, pagers, or other mobile devices without the called party's prior express consent," the FCC says. TCPA rules also apply to text messages.

FCC Chairman Ajit Pai has worked to eliminate or prevent implementation of consumer protection regulations in areas such as inmate calling rates, data security, TV set-top box rental fees, disclosures of hidden fees and data caps, and net neutrality. But Pai has taken a consistent stand against robocalls, describing the problem as a "scourge" that results in US residents receiving 2.4 billion robocalls a month despite rules intended to restrict such calls.

When asked if Pai has any position on the direct-to-voicemail petition, an FCC spokesperson said the commission cannot comment on pending petitions.

"All petitions are put out for public comment after which we will review the record" and prepare a declaratory ruling, the FCC said. "There is no set timeline for resolving such petitions and we cannot comment on the content of a petition until it is resolved by ruling." Comments are being accepted until June 2.

“They should be illegal, like other spam calls”

Since the issue started receiving more news coverage this week, the FCC docket has received well over 100 comments from individuals opposing the petition.

"I am incredulous that 'ringless' voicemails are being proposed; they should be illegal, just like all other spam calls," one petition opponent wrote. "They aren't ringless. My phone rings to notify me when a voicemail comes in, and I have to take action to silence that notification. But 'ringless' is twice as bad, because, with a normal phone call, I can see who left the message and decide whether to listen or delete. With this proposal, I would have to listen first. Please don't do this!"

A key question is whether a ringless voicemail constitutes a "call" as defined in the TCPA.

All About the Message is a company from Wyoming that describes itself as "a white label distributor of Stratics Networks." It provides "a proprietary direct to voicemail insertion solution known as 'Ringless Voicemail Drop,'" not a "call" in company parlance.



“The abuse suffered by consumers will be unlimited.”

"Stratics’ voicemail insertion solution bypasses the wireless telephone and telephone subscriber altogether, creating a direct communication between Stratics’ servers and the voicemail system of the carrier telephone company," the petition from All About the Message said. Voicemails are thus not delivered through telephone calls, the petition said.

The Stratics product's website boasts that the technology "Insert[s] Ringless voicemails directly into mobile phones WITHOUT making a call!" and offers 1,000 "test drops" to potential customers who want to try it out. Stratics claims that its technology is legal because the FCC has not regulated voicemail and "we never directly call the recipient."

A lawsuit and a settlement

A Recode article points out that another provider in 2014 asked the FCC to clarify that ringless voicemail doesn't violate anti-robocall rules, "but it never received a ruling."

All About the Message wants a waiver from the TCPA that would be retroactive, shielding it from legal liability for previous behavior. In January, a proposed class-action lawsuit was filed in US District Court in Florida against another company, TT of Pine Ridge, alleging that the company violated the TCPA. The defendant filed a motion for summary judgment arguing that "a direct to voicemail service platform is not covered by the TCPA," and thus the company "did not 'make a call'" as defined by US law.

The parties have since agreed to settle the case. But the plaintiff's lawyer filed an FCC comment opposing All About the Message's petition.

"In order to continue enforcement of the TCPA it is imperative that ringless voicemails are not given a stamp of approval by the Commission," attorney Chris Miltenberger wrote. "If the Commission approves the Petition the abuse suffered by consumers will be unlimited. There will be nothing to prevent marketers from inundating the voicemail box of every cellular user."

Miltenberger arranged for expert testimony submitted by Randall Snyder, who helped design wireless phone technologies as an AT&T Bell Labs engineer in the early 1990s and is now president of the Wireless Research Services consultancy.

"My conclusion and expert opinion is that the underlying technology platform marketed and sold by AATM (Stratics Networks) initiates automatic calls to cellular subscribers’ voicemail boxes en masse qualifies as an ATDS [Automatic Telephone Dialing System] as defined by the TCPA and associated regulations," Snyder wrote.

Snyder described several technological methods that underpin direct-to-voicemail calls, arguing that they should be covered by the TCPA. For example, direct-to-voicemail calls can be "initiated by dialing both a pilot number (aka a backdoor number) to the respective voicemail system along with the cellular telephone number of a subscriber to identify the voicemail box," he wrote. "The automatic calls Stratics Networks initiates to voicemail boxes certainly requires cellular telephone numbers to be dialed as part of the call process."

All About the Message has been careful to describe its messages "as not being direct calls to cellular telephone numbers," Snyder wrote. But that doesn't provide an exemption to the TCPA, which has no carveout for non-direct calls, he argued.

Voicemail would be littered with advertising

If the petition is allowed, the result will be "intermittent audio advertisements that are required to be played by cellular subscribers while they are accessing their voicemail messages" without consumers' consent and without providing any benefit to consumers, Snyder wrote.

Snyder also argued that extra voicemails could drive up customers' bills. Although voicemail is generally bundled into a plan with data and voice calling, there are cases where consumers pay extra fees and face storage limits. Snyder noted that Verizon's visual voicemail costs $2.99 a month and can hold up to 40 messages.

"Additional fees like this reveal the egregious nature of ringless voicemail technology. Unbeknownst to cellular subscribers, their voicemail boxes, which are indeed a cellular subscriber service, can fill up with prerecorded voice messages from robo-calls," he wrote. "This prevents more important and desired voice messages from being left and potentially costs subscribers additional fees to increase the size/capacity of the voicemail box."