TABLE OF CONTENTS
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. However, the subjects of both of these examples are wrong, as these automated ringless voicemails are a new technique used by telemarketers to reach the masses. (1) Like Lindsey and James, most cell phone users are surprised when they receive voicemail notifications even though their phones did not ring to announce an incoming call. (2)
In the past, the FCC has received two petitions arguing that ringless automated voicemails are not covered under the Telephone Consumer Protection Act ("TCPA"). Ringless voicemails have been defined by leading providers of ringless voicemails as direct automated insertions of a voicemail into a voicemail box without first contacting the consumer. (3) The first petition for a declaratory ruling was filed by VoApps in 2013. (4) VoApps argued that since consumers are not charged when they receive telemarketing voicemails, then robo voicemails (5) should be TCPA exempt. (6) Similarly, in 2017, All About the Message, LLC ("AATM") filed a declaratory ruling asserting that since they do not initiate a traditional call for the purposes of the TCPA, their equipment should not be considered an automatic telephone dialing system ("ATDS"). (7) The FCC, however, never ruled on this issue, as VoApps (8) and AATM (9) withdrew their petitions.
As the restrictions for the use of ringless voicemails for telemarketing purposes have not been delimited by either the FCC or the courts, this Note argues that ringless voicemails should be TCPA compliant, as telemarketers do "initiate a call" through an automatic telephone dialing system to deliver voicemails. Further, restricting ringless voicemails advances the TCPA's consumer protection objectives of safeguarding the privacy of consumers, whether at home or at any other place where a consumer has a reasonable expectation of privacy. If ringless voicemails are not subject to the requirements and prohibitions prescribed under the TCPA, then the Act itself loses its potency, as telemarketers are able to reach consumers without their consent and without restriction.
Part II of this Note provides an overview of the TCPA and describes the motives and intent behind its enactment. It also defines the elements found in the "initiating a call" requirement and expounds on how the concept evolved from calling a consumer at her residence, to calling the consumer on her wireless phone, and finally to sending robo telemarketing over-the-Internet text messages to consumers through automatic dialing systems. Furthermore, it defines what an automatic telephone dialing system is for the purposes of the TCPA. Finally, it describes different methods used to deliver ringless voicemails. Part III argues that since the TCPA was created more than twenty years ago to protect consumers from intrusive technological methods created by telemarketers to reach them, the next logical step is for the FCC to broaden its interpretation of the TCPA, or in the alternative, for Congress to modernize the TCPA to allow for protection against recently-created telemarketing methods. Part IV concludes by stating that if ringless voicemails are exempt from TCPA requirements and prohibitions, then the TCPA itself loses its potency, as telemarketers would have an open door to flood consumers' voicemail boxes with telemarketing messages without their consent and in violation of their privacy.
The Telephone Consumer Protection Act of 1991
The Telephone Consumer Protection Act was enacted on December 20, 1991. (10) Before its enactment, the number of consumer complaints was growing exponentially as telemarketing companies, aided by advanced technology, made telephone solicitations more widespread. (11) Congress found that consumer complaints were twofold: First, for the volume of unsolicited calls that they received, and second, for the unexpected nature of the calls themselves. (12) Hence, Congress acted on the premise that unlike other mediums of communication, such as the television, which can be turned off, and junk mail which can be thrown away, "the telephone demands to be answered," thus, unwanted telephone solicitations commanded instant attention. (13)
Congress sought to strike a balance between "individual privacy rights, public safety interests, and commercial freedoms of speech and trade" in a way that ensured consumer privacy and legitimate commercial practices. (14) Therefore, the Act was created to protect the privacy interests of telephone subscribers and to promote interstate commerce by restricting certain uses of fax machines and automatic dialers. (15)
As initially introduced, the bill would have prohibited the use of automatic dialing machines; automatic or prerecorded calls made to emergency lines, including pagers and cellular phones; and unsolicited fax advertising. (16) As the discussion in Congress advanced, the bill ultimately extended the prohibitions to unsolicited telephone solicitations or telemarketing calls consumers did not consent to receiving at their homes. (17)
As enacted, the TCPA prohibits any person within or outside the United States, if the recipient is in the United States (18) from "initiat[ing] any telephone call ... using an artificial or prerecorded voice to deliver a message without prior express consent of the called party ...." (19) Also, the statute makes it unlawful to use any fax machine or other device to send unsolicited advertisements to another fax machine. (20) Furthermore, it directs the FCC to prescribe regulations to implement these provisions (21) and to exempt calls that are not made for commercial purposes and that will not affect the privacy rights of individuals. (22)
The FCC reaffirmed that under the TCPA, it is unlawful "to make any call using an automatic telephone dialing system or ... prerecorded message to any wireless telephone number." (23) These calls are prohibited, with some exceptions, "to any telephone number assigned to a paging service, cellular telephone service ... or other common carrier service, or any service for which the party is charged." (24)
The FCC and the Courts Broaden Their Interpretation of the Scope of the TCPA
Evolution of the Definition of a "Call"
The TCPA does not explicitly define what constitutes a call. (25) The FCC, however, has interpreted the definition of a call to include voice calls and text messages, including the short message service (SMS), (26) provided that voice and text calls are made to a telephone number assigned to such service. (27) Courts, however, have defined a call in more detail. (28) In Joffe v. Acacia Mortgage Corp., the court defined a call as "an attempt to communicate by telephone." (29) That attempted communication need not be a "two-way, real time voice intercommunication," (30) and whether the communication...