Dealers and automotive sales finance companies must proceed with caution when considering using ringless voicemail services to reach leads and current customers. The few courts that have considered the application of the Telephone Consumer Protection Act to these services have consistently found that these services require the recipient’s consent, just like other types of prerecorded message calls.

Ringless voicemail services do not call the recipient’s cell phone number. Instead, these services call a phone number assigned to a server maintained by the consumer’s voicemail service provider, delivering a message directly to the consumer’s designated part of the server. The consumer’s phone does not ring, but the consumer receives a notification of a new incoming voicemail message.

Defendants in these cases have not been successful in arguing that ringless voicemail services are “information service technologies” beyond the TCPA’s reach. These courts have not held that the TCPA prohibits ringless voicemail services; rather, they have held that ringless voicemails delivering advertising or telemarketing content require “prior express written consent.” This can be a high bar to clear, especially when working with third-party lead generators.

As you may know, “prior express written consent” means an agreement, in writing, bearing the signature of the person called that clearly authorizes the seller to deliver or cause to be delivered to the person called advertisements or telemarketing messages using an automatic telephone dialing system of an artificial or prerecorded voice, and the telephone number to which the signatory authorizes such advertisements or telemarketing messages to be delivered. This agreement should identify the seller receiving the consent and must explain that the consumer is not required to give this consent as a condition of buying goods or services from the seller.

Originally published in Non-Prime Times Magazine - November/December 2019.