The unceasing assault of robocalls makes constantly answering automated calls and deleting voicemail messages annoying enough. But if a Republican-backed proposal before the Federal Communications Commission goes through, you may find that your voicemail inbox has filled up without your phone even ringing.
On Friday, the Republican National Committee, which handles national fundraising and campaigning for the GOP, filed a public comment supporting a proposal currently awaiting judgment by the FCC, Recode’s Tony Romm reported late Tuesday. The petition, filed in March by the marketing firm All About the Message LLC, would permit private companies and political organizations to deposit automated messages into consumers’ voicemail inboxes without causing the cellphones themselves to ring. If the FCC rules in its favor, the proposal would move “ringless voicemail” robocalling technology from a regulatory gray area to legal fair game, potentially opening the floodgates for telemarketers and political organizations to inundate Americans’ voicemails with messages hawking products, services, and candidates for office.
The RNC’s effort to legalize ringless robocalling is part of a coordinated but hush-hush campaign to lift consumer protections on cellphones. AATM’s 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 prohibitions on the use of an automatic telephone dialing system…or an artificial or prerecorded voice that are set forth in the Telephone Consumer Protection Act” of 1991. That law, implemented by the FCC, bars telemarketers and political parties from robocalling cellphones without the prior written permission of a device’s owner. Although the Federal Trade Commission advises consumers to file a complaint if they receive an unauthorized automated solicitation from a private company, illegal commercial robocalls aimed at mobile users are on the rise. As the New York Times reported earlier this month, the nearly 30 billion telemarketing calls U.S. cellphone owners received last year (one-and-a-half times as many last December as in December 2015, according to YouMail) consistently topped the FCC’s list of consumer complaints.
But much to consumers’ chagrin, AATM and the RNC may have found a way around the TCPA’s permission stipulation. Their argument hinges on the somewhat arcane question of whether or not a cellphone robocall placed into a consumer’s voicemail without causing the phone to ring legally constitutes a “call.” Their answer rests largely on a technicality—and on the technological backwardness of the TCPA law that regulate robocalls. “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” with a consumer’s voicemail service provider, William I. Rothbard, a California lawyer who specializes in advertising and regulatory law, explained on his professional blog last October.*
This means that the phone owner receives neither a call to the device itself nor a charge for listening to the voicemail. As Rothbard notes, the TCPA “prohibits autodialed and prerecorded message calls made to a telephone number assigned to a wireless service, rather than to a telephone”—that is, the physical device itself. AATM argued in its petition that the ringless voicemails don’t cause “disruptions to a consumer’s life” like “dead air calls, calls interrupting consumers at inconvenient times, or delivery charges.” And because voicemail has traditionally been construed as falling outside the purview of FCC regulation, there’s a case to be made that ringless robocalls shouldn’t be subject to the current law’s express written consent requirement.
It’s now a case that both telemarketers and the RNC are making. Ringless robocall technology is a boon to businesses and marketing agencies, expanding the number of consumers they can reach while saving them time, money, and regulatory hassle. Debt collection and loan agencies were using the technology to leave consumers prerecorded messages in 2015. Under threat from challenges to the legality of its technology, companies like AATM are looking to the FCC to clear the air. (Landline robocalls, of course, also have a long and invasive history in American politics. Since the 1980s, they’ve been an inexpensive way for campaigns to promote candidates, lobby constituents, and turn out voters. Although some states place local restrictions on automated political calls, because they’re exempt from the FTC’s National Do Not Call Registry, campaigns and grass-roots organizations can usually robocall with abandon. TechRepublic estimates that Americans received about 18.7 billion political robocalls in the first half of 2016. And as Politico reported Tuesday, Vice President Mike Pence recently recorded one in support of Republican Greg Gianforte, who is locked in a close race with Democrat Rob Quist in a Montana House special election.)
The FCC has been asked to address the legality of ringless voicemail robocalls before. In 2014, a company called VoAPPs filed a proposal similar to AATM’s that asked the agency to “conclude that delivery of a voice message directly to a voicemail box…does not constitute a call.” The FCC hasn’t yet issued a ruling. According to its Friday FCC comment, the RNC’s case for ringless robocalling also rests on the First Amendment. “Political organizations like the RNC use all manner of communications to discuss political and governmental issues and to solicit donations — including direct-to-voicemail messages,” the comment said. “The Commission should tread carefully so as not to burden constitutionally protected political speech without a compelling interest.”
Consumer advocates have taken the RNC to task for supporting fewer restrictions on robocalls. “I think it’s unfortunate that there’s a push by any political party to reduce the protections in [the robocall rules] for cellphones,” Margot Freeman Saunders, senior counsel at the National Consumer Law Center, told Recode. Saunders argues that the annoyance of robocalls has pushed many consumers’ decision to forego landlines in favor of cellphones. And because it shunts voicemails directly into a specific device’s inbox rather than dialing users’ telephone numbers, ringless robocall technology obviates many of the strategies the New York Times, USA Today, and others have recommended to help consumers combat the increasing number of cellphone robocalls, which include adding your number to the National Do Not Call list, installing blocking apps like PrivacyStar or Truecaller, and not answering callers whose number you don’t recognize.
The FCC moved to begin taking public comments on the AATM filing last Thursday. With his penchant for skewering the federal agency well-established, it seems only a matter of time before late-night comedian John Oliver gets involved. The comment period will remain open until June 2.
*Correction, May 24, 2017: This blog post originally misspelled California lawyer William I. Rothbard’s name.