Ringless Voicemails: How an Emerging Unregulated Technology May Hinder the Intent of Telephone Consumer Protection Act of 1991

By Aleman, Irela | Federal Communications Law Journal, May 2019 | Go to article overview

Ringless Voicemails: How an Emerging Unregulated Technology May Hinder the Intent of Telephone Consumer Protection Act of 1991


Aleman, Irela, Federal Communications Law Journal


TABLE OF CONTENTS

I. Introduction                                                   255
II. Background                                                    257
    A. The Telephone Consumer Protection Act of 1991              257
    B. The FCC and the Courts Broaden Their
       Interpretation of the
    Scope of the TCPA                                             258
1. Evolution of the Definition of a "Call"                        258
2. Evolution of the Definition of an Automatic Telephone
   Dialing System ("ATDS")                                        259
3. Evolution of the Prior Consent Requirement                     261
    C. The Do-Not-Call Registry                                   264
       1. Constitutional Implications
          of the Do-Not-Call Registry                             264
    D. Technological Methods Used to
       Deliver "Ringless Voicemails"                              266
III. Analysis                                                     266
    A. The FCC Has the Authority to
       Regulate New Technologies                                  266
    B. For the Purposes of the TCPA,
       a Ringless Voicemail Should Be
       Considered a "Call"                                        267
1. The TCPA Does Not Exclude Indirect, Non-traditional,
   or Brief Telephone Calls                                       268
2. Ringless Voicemails Qualify as "Calls," as Consumers
   Are Charged for Voicemail Services                             269
C. The Methods Used to Deliver Ringless Voicemail Should Be
   Considered Automatic Telephone Dialing Systems (ATDS)          270
D. Do-Not-Call Registry Requirements Should Be imposed on
   Ringless Voicemails                                            270
E. The FCC Should Broaden Its Interpretation of the Scope of the
   TCPA                                                           271
F. In the Alternative, Congress Should Amend the TCPA to Reflect
   Current Technologies                                           272
IV. Conclusion                                                    273

I. INTRODUCTION

Suppose that Lindsey is a working mother of two children. Every morning, she drops her kids off at school and heads to work. When she arrives at her job, Lindsey is proactive and always busy. One day, her youngest son felt sick at school, and in accordance with the school's policy, the nurse contacted the child's guardian, Lindsey, to update her on the situation. Lindsey, as busy as she always is, did not answer her cellphone on time and could not be reached. The school nurse called again; however, she could not leave a voice message as Lindsey's voicemail box was cluttered with automated telemarketing messages and had reached its full capacity. Lindsey did not find out that her son had been sick all day until she picked him up later that afternoon. Lately, Lindsey has noticed an increase in prerecorded telemarketing voicemails, and even though she tries to maintain her voicemail box uncluttered, it seems impossible, as she receives tens of automated telemarketing voicemails per day. Lindsey, however, thinks these automated voicemails are a consequence of not being able to answer her phone on time while she is at work or at home with her children.

Consider another scenario, where James has also experienced telemarketers leaving frequent automated voice messages on his cellphone. James is currently unemployed but actively searching for a job. In the past weeks, he has sent several employment applications to diverse companies, and one of those companies is interested in interviewing him. The potential employer called him to offer an interview, but because James has bad reception at his home, the call did not get through, and the potential employer left a voice message. James assumed it was another telemarketing voicemail and disregarded it. James believes the accumulation of voicemails is a consequence of him not picking the phone on time because of his bad reception. …

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