In an earlier newsletter we examined a recent marketing innovation known as “ringless voicemail,” whereby pre-recorded messages are posted directly onto voicemail servers instead of being delivered via direct calls to phones.
In March of this year, a marketing company called All About The Message, LLC, filed a petition with the FCC asking for a ruling that would prevent rules against robocalls from applying to ringless voicemail (RVM). The FCC responded by issuing a Public Notice seeking comment on the matter from the business and private sectors.
In May, the Republican National Committee (RNC) sent a letter to the FCC lending its support of RVM technology. The RNC argued that all political parties could benefit from this technology in reaching constituents concerning important election matters.
In June, Democratic lawmakers sent a letter to FCC Chairman Ajit Pai calling RVM “unwanted, invasive and abusive.” Consumer groups and Attorneys General in three states - New York, Massachusetts and Kentucky - also filed formal comments against the measure. National media outlets including The Washington Post, The New York Times, NBC News and CBS News ran articles critical of the RVM and roboballs in general.
Consequently, on June 20th, All About the Message, LLC withdrew its FCC petition for a declaratory ruling on RVM in a one-sentence letter.
While the withdrawal of the petition appears to close the matter for now, there may be future attempts to classify and carve out exemptions for RVM. It could be a confusing path. As we explore in the story at right, Congress and the FCC have a history of loose interpretations and conflicting signals around rules governing telemarketing activity.
The Telephone Consumer Protection Act of 1991 (TCPA) was created to regulate and limit the use of automatic dialing systems in the delivery of messages through phone systems, text and fax.
While the law has accomplished many of its goals, it has also brought compliance headaches, an abundance of lawsuits, and a public-opinion mess. We hold a primary reason for its shortcomings is the imprecise use of language and the lazy, generalized definition and redefinition of terms.
Case in point: A bill proposed recently by Senator Bill Nelson (D-FL) attempts to define commonly-accepted terms so as to broadly embrace activities outside their original meaning.
Known as the “Spoofing Prevention Act,” Senate Bill S. 134 has been sent to the House for ratification. In that bill is a new definition for “text message” which no longer requires a text message to have any actual text.
It proposes a text message definition as “a message consisting of text, images, sounds, or other information that is transmitted from or received by a device that is identified as the transmitting or receiving device by means of a 10-digit telephone number.”
So a text message could be simply sound? And it doesn’t require the message to be sent from a cell phone?
Literally, any “message” – which is left undefined as a term in the proposed bill and is thus open to broad interpretation itself – received via any device that can be identified by a 10-digit phone number qualifies as a “text message.”
(Note that the FCC already ruled that “text messages” are phone calls, and that such messages require the “prior express written consent” of the called party.)
The bill also specifically excludes “real-time, two-way voice or video communication” from that definition.
We point out the very subtle technicality here; it is not real-time, two-way voice service that is exempted. It is only a real-time, two-way communication that is exempt.
Will this then be interpreted to mean that a live-agent call, made to a plain-old-telephone-service (POTS) landline, wherein a voice message is left on the answering machine, is not excluded from this new definition of “text message?”
Further, in the same bill it defined “voice service” as one that furnished voice communications.
Finally, it defines “text message service” as one that enables the sending or receiving of text messages including services associated or connected with voice.
Will a ring-less voice mail message be interpreted as a "text message" and by proxy be pushed under TCPA restrictions for cell phones or pre-recorded messages?
Some could argue that we split hairs here, but our position is that the “splitting of hairs” is exactly what litigators and courts do!
The practice of vague meanings, generalized terms, and arbitrarily interpretations of TCPA has resulted in little more than 1) a reduction of legitimate commerce and national revenue, 2) ineffective provisions to actually stop the bad players, 3) a vehicle to primarily generate revenue for the legal industry.
Congress, officials, and the press should take note. With the lazy use of terms and slanted legislation you are making it harder for honest businesses to engage in legitimate commerce.
Be precise, and design effective legislation to knock out the bad players and bolster the good.
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