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Simply Put – Do NOT Rely on providers that market their Ringless Voicemail products as TCPA “compliant”

Jul 05, 2019
Shamis & Gentile, P.A.
ringless voicemail compliance

Have you considered using ringless voicemail technology for lead generation?   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. But ask yourself this, is it worth the risk if the technology is not TCPA compliant? Shamis & Gentile, P.A. discuss ringless voicemail compliance and whether you should trust the provider who is marketing their product as TCPA compliant.

How Does Ringless Voicemail Work?

Modern technology has blurred the differences between telephones and the Internet. You can make calls on the Internet and receive text messages on your phone. Another version of this technology is the ringless voicemail. Ringless voicemail marketing companies have now taken advantage of this technology to send you advertisements. Basically, these messages are server to server communication methods allowing for a drop or direct insertion of a voicemail into your mailbox or server. Direct voicemails can be sent to any mobile phone and even landlines.

Is Ringless Voicemail TCPA Compliant?

Regardless of the merits of RVM in customer contact, a critical issue is whether a business’s intended use of RVM is compliant with federal and state laws, and particularly the Telephone Consumer Protection Act (“TCPA”). Many RVM providers market their products as TCPA “compliant” because RVM does not place calls in the traditional sense and because calling lists may be scrubbed against the national do-not-call (“DNC”) registry prior to sending any messages. These Ringless Voicemail compliance claims should be viewed skeptically.

Ringless Voicemail Compliance | Federal Communications Commission (FCC)

It is true that the TCPA, and similar state laws, generally regulate “calls” to telephone numbers and that RVM does not place a “call” in the traditional sense. However, the Federal Communications Commission (“FCC”) has long held that sending text messages—another technology that relies on server-to-server communication and does not result in a ringing telephone—constitutes a “call” under the TCPA. Given that the TCPA was enacted in 1991, before text messaging or RVM existed, courts and the FCC have consistently recognized that the TCPA and its terms should be construed in relation to new technologies that emerge that could attempt to circumvent the statute. Applying this framework, every single court to have addressed the issue to date has concluded that the use of RVM still constitutes a “call” and is subject to the TCPA, because it constitutes an attempt to communicate by telephone. Indeed, one RVM provider previously petitioned the FCC to issue an order stating that RVM was not subject to the TCPA, only to withdraw the petition after the FCC sought public comment and received a significant negative consumer response.

RVM Technology Subject to TCPA

Even if RVM technology is subject to the TCPA, that does not make it inherently unlawful to use. Rather, the business must evaluate whether its intended use of RVM is subject to any specific restrictions in the TCPA. And while compliance with the DNC registry is certainly important, it is just one component of that inquiry. Just because a company’s use of RVM is DNC compliant does not mean that it is TCPA compliant.

For example, even if a telephone number is not on the DNC registry, it may violate the TCPA if a prerecorded telemarketing message is left on either a residential landline or a cellular telephone, unless the caller has the prior express written consent of the called party. Even if not for telemarketing purposes, it is still generally a violation of the TCPA to leave a prerecorded message on a cellular telephone without some other form of consent (not necessarily written). And even if a company’s use of RVM is TCPA compliant, there are still other laws that must be considered. For example, in 2018 the State of Florida amended its telephone solicitation laws to expressly include RVM technology within its scope.

Ringless Voicemail Compliance | TCPA Penalties

The above are simply illustrative examples. While RVM technology has great potential, there is an equally grave potential for misstep. The TCPA imposes penalties of up to $1,500 per call in violation of the statute. Given the large number of TCPA class action lawsuits, improper use of RVM may result in potentially crippling damages for a business, far exceeding whatever benefit or cost-savings is realized in the short-term.

Do not simply rely on an RVM provider’s assurances or marketing materials that its product is “TCPA compliant.” Businesses must independently evaluate their intended use of any RVM campaigns, including who is being called, the type of telephone number being calls, the purpose of the message, and (if applicable) the type of consent necessary, relative to the TCPA’s requirements to ensure Ringless Voicemail compliance in your industry.

Ringless Voicemail Compliance

Regardless of the merits of RVM in customer contact, a critical issue is whether a business’s intended use of RVM is compliant with federal and state laws, and particularly the Telephone Consumer Protection Act (“TCPA”). Ringless Voicemail compliance claims should be viewed skeptically. Contact Shamis & Gentile, P.A. if you are unsure of the laws regarding ringless voicemail technology.

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