Telemarketers fight for right to get in a call with no ring

Consumer advocates say ringless voicemail is gaining traction and want FCC to block practice

Frank Kemp was working on his computer when his cellphone let out the sound of Mario — from Super Mario Bros. — collecting a coin. That signaled he had a new voicemail message, yet his phone had never rung.

“At first, I thought I was crazy,” said Kemp, a video editor in Dover, Del. “When I checked my voicemail, it made me really angry. It was literally a telemarketing voicemail to try to sell telemarketing systems.”

Kemp had just experienced a technology gaining traction called ringless voicemail, the latest attempt by telemarketers and debt collectors to reach the masses. The calls are quietly deposited through a back door, directly into a voicemail box — to the surprise and (presumably) irritation of the recipient, who cannot do anything to block them.

Regulators are considering whether to ban these messages. They have been hearing from ringless voicemail providers and pro-business groups, which argue that these messages should not qualify as calls and, therefore, should be exempt from consumer protection laws that ban similar types of telephone marketing.

But consumer advocates, technology experts, people who have been inundated with these calls and the lawyers representing them say such an exemption would open the floodgates. Consumers’ voicemail boxes would be clogged with automated messages, they say, making it challenging to unearth important calls, whether they are from an elderly mother’s nursing home or a child’s school.

If unregulated, ringless voicemail messages “will likely overwhelm consumers’ voicemail systems and consumers will have no way to limit, control or stop these messages,” Margot Freeman Saunders, senior counsel at the National Consumer Law Center, wrote in the organization’s comment letter to the Federal Communications Commission on behalf of more than a dozen consumer groups. “Debt collectors could potentially hijack a consumer’s voicemail with collection messages.”

The commission is collecting public comments on the issue after receiving a petition from a ringless voicemail provider that wants to avoid regulation under the Telephone Consumer Protection Act of 1991. That federal law among other things prohibits calling cellular phones with automated dialing and artificial or prerecorded voices without first obtaining consent — except in an emergency.

All About the Message, the ringless voicemail provider petitioning the commission, uses technology developed by another company, Stratics Networks. All About the Message’s customers use the service to deliver messages for marketing or other purposes right to consumers.

Will Wiquist, a spokesman for the FCC, said the commission would review the record after the public comment period closed and consider a decision. There is no formal timeline for resolving such petitions, and the commission cannot comment on the petition until a ruling is issued.

“They are all poised to launch a cannon full of calls to consumers,” said Peter F. Barry, a consumer lawyer in Minneapolis. “If there is no liability for it, it will be a new law that needs to get passed very quickly.”

More specifically, All About the Message wants the FCC to rule that its voicemail messages are not calls, and therefore can be delivered by automatic telephone dialing systems using an artificial or prerecorded voice. In its petition, the company argued that the law “does not impose liability for voicemail messages” when they are delivered directly to a voicemail service provider and subscribers are not charged for a call.

“The act of depositing a voicemail on a voicemail service without dialing a consumers’ cellular telephone line does not result in the kind of disruptions to a consumer’s life — dead air calls, calls interrupting consumers at inconvenient times or delivery charges to consumers,” All About the Message wrote. The company’s lawyer declined to comment.

If the commission rules against it, All About the Message said, it wants a retroactive waiver to relieve the company and its customers of any liability and “potentially substantial damages” for voicemail already delivered.

The company has reason to ask. Even though it started business just last year, one of All About the Message’s customers — an auto dealer — is facing a lawsuit involving a consumer who received repeated messages. Tom Mahoney, who said he received four voicemail messages from Naples Nissan in 2016, is the lead plaintiff in a suit filed in U.S. District Court for the Southern District of Florida.

According to the suit, the parties in the case have reached a tentative agreement to settle all claims. Lawyers for both Mahoney and Naples Nissan declined to comment.

The suit said that Mahoney’s daughter had received similar messages — advertising zerointerest auto financing — and that neither he nor she had given the company consent.

Josh Justice, chief executive of Stratics Networks, said its technology — which can send out 100 ringless voicemail messages a minute — had existed for 10 years and had not caused a widespread nuisance. It was intended for businesses like hospitals, dentist’s and doctor’s offices, banks, and shipping companies to reach customers, for example, and for “responsible marketing.”

“The concept of ringless voicemail was to develop a nonnuisance form of messaging or a nonintrusive alternative to robocalls,” Justice said.

He contends that telemarketers should be able to use ringless voicemail messages as long as they do so responsibly — that is, skipping over consumers on the “Do Not Call” list, identifying who is leaving the message and giving people a way to opt out. But he said he did not believe that ringless voicemail needed to be subject to the same regulations as other calls — unless regulators find that the messages are generating complaints or being used inappropriately.

Consumer advocates and other experts argue that the courts and the FCC have established that technology similar to ringless voicemail — which delivered mass automated texts to cellphones — was deemed the same as calls and was covered by the consumer protection law.

DAVID NORBUT THE NEW YORK TIMES Frank Kemp, who has received messages on his cellphone via a new technology called ringless voicemail, in Dover, Del. Such messages bypass a phone’s ring tone and are quietly deposited directly into a recipient’s voicemail box.