“I’m Unavailable to Take Your Advertisement Right Now”: FCC Regulation of Direct-To-Voicemail Marketing

by Robins Kaplan LLP

The days of lamenting the dinnertime telemarketing call seem to have faded, but as communication technology ? particularly cell phone and smartphone usage ? has become ubiquitous, advertisers have found new avenues to advertise to their customers. With the advent of text messaging and mobile phones, advertisers gained a new way to reach consumers who weren’t picking up their home landline for sales calls. And now, advertisers have yet another method for connecting with their customers: direct-to-voicemail marketing. This technology allows advertisers to leave voicemail messages directly on a cellular or landline phone without the consumer’s phone actually ringing. This theoretically saves customers the hassle of taking (or ignoring) an unwanted call, and is more cost-effective for advertisers than staffing a call center with live sales representatives.

But as marketing technologies have evolved with the market, regulators have adapted as well – implementing new regulations to address these advances and protect consumers from unwanted ads. The most notable regulation is the Telephone Consumer Protection Act (“TCPA”), which was passed in 1991. Aimed at protecting consumers from unwanted communications, the TCPA limits the use of autodialers, prerecorded messages, and faxes without the customer’s consent. As a part of the TCPA, the Federal Trade Commission implemented the National Do Not Call Registry. Unsolicited sales calls to people who sign up for the Do Not Call Registry are prohibited, and the FTC accepts complaints on its website for customers receiving calls from advertisers violating this policy. This list is not without problems, though – technology has made it easier for telemarketers to make a large volume of “robocalls” without being detected, and to “spoof” the phone number so that the number appearing on the customer’s caller ID doesn’t actually belong to the telemarketing company making the call. Although the system remains imperfect, the FTC is working to crack down on more of these illegal sales calls.

As text messaging – and text messaging advertising – became inescapable, regulators also turned their attention to regulating unsolicited text advertisements. The Federal Communications Commission (“FCC”) has stated, for example, that text messages are subject to the same rules (like the TCPA) as telemarketing calls. This means that advertisers must obtain consent before text messaging a customer before sending automated text messages, and that customers can stop these texts at any time by opting out.

With these channels (at least partially) closed to advertisers, direct-to-voicemail marketing emerged to fill the telemarketing gap. Earlier this year, advertisers asked the FCC to opine on whether these messages are subject to the same TCPA restrictions as text messages or calls that ring. Advertisers argue that they are not, because they don’t cause the same disruption to the consumer. Consumer advocacy groups have, unsurprisingly, weighed in against the advertisers’ proposed reading of the law. Several state attorneys general have urged the FCC to not increase the number of marketing messages consumers are receiving. New York Attorney General Eric Schneiderman argued that the federal government’s responsibility to protect American consumers “doesn’t mean making it even easier for companies to spam them with costly, unsolicited, ringless robocalls.” After receiving staunch opposition, the marketing company requesting the FCC opinion eventually withdrew its petition before the FCC ruled on the matter.

Although the FCC has not yet provided official guidance on this issue, it clearly is within the spirit of the TCPA rules to apply them ringless voicemail as well.  Following these guidelines not only prevents a potential issue with the FCC – it’s also more likely to keep the company in consumers’ good graces.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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