New Petition Renewing Request for FCC Clarification of TCPA Status of “Ringless Voicemail” for “Get Out the Vote” Campaigns

The FCC recently announced a public comment period for a new Petition for Declaratory Ruling that seeks to have the FCC “clarify that delivery of a voice message directly to a voicemail box through ringless voicemail (RVM) technology does not constitute a ‘call’” subject to TCPA prohibitions. The Petition was filed by the U.S. Senate campaign for David Perdue – Perdue for Senate, Inc. (Perdue) stemming from litigation in Georgia related to primary election delivery of RVMs to voters. Interested parties have until October 4, 2021, to submit comments and until October 19, 2021, to submit reply comments.

Perdue’s July 2021 Petition brought back a recurring debate, most recently in 2017, when another organization, All About the Message, LLC (AATM), filed a similar petition for declaratory ruling to ask the FCC to “declare that the delivery of a voice message directly to a voicemail box does not constitute a call” subject to TCPA prohibitions. While AATM ultimately withdrew its petition three months later, by that time the FCC already sought a round of comments and received approximately 200 comments (excluding express comments) on that petition. In addition to the high volume of public comments, that petition also drew a great deal of attention from Congress, attracting the support of the Republican National Committee while receiving fierce objections from over a dozen Democratic Senators and House representatives.

In Perdue’s July 2021 Petition, the Perdue campaign specifically described a use case where “non-profit entities, including political campaigns and get-out-the-vote (GOTV) organizations,” deliver “a voice message directly to voters’ voicemail boxes” “to effectively provide voters with critical and localized election-related information.”

To support its petition, Perdue reiterated similar arguments to those raised by AATM in 2017. They both argued that RVM technology is not delivered through a wireless channel because the RVM technology “establishes a direct server-to-server connection between the RVM vendor and the voicemail system that bypasses wireless networks.” Because RVM technology voice messages do not ring the telephone and do not allow consumers to contemporaneously interact with them, the petitioners argued that the RVM messages do not cause comparable levels of annoyance as robocalls or robotexts. Moreover, the petitioners argued that the RVM voice messages do not bill the recipients or even show up on the recipients’ telephone bills and the FCC does not have broad jurisdiction over voicemail service, which is an information service.

Additionally, Perdue argued that its proposed use case has public interest benefits. It stated that “RVM technology features allow non-profit organization GOTV campaigns to contact potential voters without ever calling their mobile phones” and “allow[] non-profit organizations to reach a broader audience than is otherwise possible through traditional means.” Perdue also believed that the FCC’s declaratory ruling on this issue could curtail the “widespread abuse by serial class action plaintiffs” that hinders “the ability to efficiently reach voters in a nonintrusive way,” which “is a bipartisan issue that affects campaigns across the nation.”

Perdue’s petition quickly attracted dozens of comments and express comments within weeks of filing. As the comment deadlines have not passed, we expect that this petition again will mark an active period for the FCC’s TCPA docket, as the status of RVMs within the TCPA framework is a hotly contested issue. Faegre Drinker’s TCPA team will continue to monitor this docket and related developments.