Petition seeks to exempt ringless voicemail from TCPA

A petition filed with the Federal Communications Commission (FCC) seeking to exempt ringless voicemails as “calls” in the Telephone Consumer Protection Act could affect auto lenders’ collection practices and prompt debt-collection risks. The campaign for former U.S. Sen. David Perdue of Georgia filed the petition July 8, seeking to exempt the delivery of a voice message straight to a consumer’s voice mailbox as a “call” as defined under the Telephone Consumer Protection Act (TCPA). The petition states that the technology used to facilitate ringless voicemail messages “falls outside of the TCPA’s regulatory scope” because it does not place a call to a telephone, or to any service in which the party would be charged for the call. The argument is not a novel one, according to John Redding, partner at Alston & Bird, who specializes in the TCPA. “The campaign calls out some of the traditional arguments that I would expect in a position of this type relative to the nature of the technology and the fact that it doesn’t use the wireless networks,” Redding told Auto Finance News . While the petition is specific to political campaigns, an exemption for ringless voicemails could impact collection practices across multiple industries, including auto finance, Mark Brennan, partner at Hogan Lovells , told AFN . Brennan advises clients on technology and telecommunications compliance issues. “The FCC, in reviewing the petition, will need to assess both the technologies and the impact. It’s possible that an FCC decision on the technology would apply to the use of that technology across all kinds of calls, and not just political campaigns,” Brennan said. “The FCC could look to distinguish political campaign calls from other calls, but that would create potential First Amendment or other issues that could be subject to appeal.” It’s also important for auto lenders to note that, even if ringless voicemails are no longer subject to the TCPA, the Consumer Financial Protection Bureau already defines a ringless voicemail as a call under its debt-collection rule, prompting debt-collection risks, Alston & Bird’s Redding said. The Bureau’s federal debt collection rule limits collector calls to no more than seven within a week under its Unfair or Deceptive Acts or Practices (UDAP) authority. “Even if this worked out, you would end up with a difference in treatment depending upon the agency,” Redding said. “If the Bureau were to take the position that creditors are subject to the call limitation under its UDAP authority, [lenders are] in the same position as collection vendors in that, even though the use of ringless voicemail as a creditor in my servicing operation is not a TCPA violation, I have to watch out for a potential UDAP risk under the debt-collection law.” Next steps The FCC will next need to seek public comment on the petition, with likely a 30-day comment period for interested companies and shareholders to weigh in, Hogan Lovell’s Brennan added. The FCC will then review public comments and replies in considering next steps. “This petition raises a number of legal and policy issues that we have seen raised at the agency in the past in other petitions involving ringless voice messages,” Brennan said. “However, the agency has not yet directly addressed some of the questions raised in the petition, so it will be interesting to see what they do.” Two similar efforts in the past have been quickly shut down by consumer advocacy opposition, Brennan said, noting this may be the first that focuses on ringless voicemail technologies in the context of political campaigns. In 2017, for example, marketing company All About the Message petitioned the FCC to exempt ringless voicemails from anti-robocall rules, according to published reports. A few months later, the company withdrew its petition without explanation following opposition from Senate Democrats and several consumer advocacy groups. Consumer advocacy opposition The current petition is likely to draw similar resistance, with the Consumer Federation of America already pledging to fight the move. The organization opposed the 2017 petition as well. “Ringless voicemail messages are just as invasive, expensive and annoying as calls and texts to cell phones,” Susan Grant, director of consumer protection and privacy for the group, told AFN . “Why any politician would fail to understand that people don’t want their voicemail boxes to be clogged with these messages is beyond me.” A joint statement filed by the National Consumer Law Center with 15 other consumer advocacy groups opposing the 2017 effort stated: “Granting the petitioner’s request would allow telemarketing and debt collection messages to overwhelm the voicemail boxes of consumers. Unlike their ability to limit calls and texts, consumers have no way to limit, restrict or block unwanted voicemail messages from particular callers.” However, political campaigns are hard to characterize as “anti-consumer,” likely forcing consumer advocacy groups to change up their opposition tactics, Redding said. The campaign’s petition argues that ringless voicemails allow political campaigns and nonprofit groups to convey critical election-related information to consumers without raising privacy concerns that would normally trigger the TCPA. “I don’t think [consumer advocates] will react to the party submitting it the same way they would react to a company engaged in financial services,” Redding said. “Here, [advocates] have to indirectly attack the request for the potential implications that it could have, as opposed to the direct implications.” Changing technologies Still, this issue isn’t likely to go away anytime soon, Hogan Lovells’ Brennan said. “There are a number of technologies today, ringless voicemail and others, that were not in use at the time the TCPA was passed in 1991,” he said. “We've seen courts being mindful of instances in which this law that's more than 30 years old has been used to restrict technologies that weren't available at the time. It raises a number of questions about how broadly to interpret certain provisions in the TCPA.” In its April 1 decision of Facebook v. Duguid , for example, the U.S. Supreme Court clarified the definition of an automatic telephone dialing system , painting a picture of how the FCC may review the language of the TCPA statute, Brennan told AFN . “The petition mentions that the TCPA restricts calls, and that these ringless voicemails are not calls under the TCPA,” he said. “We'll have to see if the agency agrees, especially in light of Supreme Court decisions that have really stayed close to the language that Congress used in the statute.” Additional reporting by Joey Pizzolato Auto Finance Summit, the premier industry event, returns October 27-29 in Las Vegas. The Summit continues to bring together the best and brightest in the industry year after year for unparalleled networking and professional education. To learn more about the 2021 event and register, visit www.AutoFinanceSummit.com .

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Petition seeks to exempt ringless voicemail from TCPA

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