Telephone Consumer Protection Act of 1991; Petition for Declaratory Ruling of All About the Message, LLC, 76425-76427 [2022-26673]
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Federal Register / Vol. 87, No. 239 / Wednesday, December 14, 2022 / Rules and Regulations
Dated: November 1, 2022.
Lauren K. Roth,
Associate Commissioner for Policy.
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
[FR Doc. 2022–24106 Filed 12–13–22; 8:45 am]
BILLING CODE 4164–01–P
33 CFR Part 165
[Docket No. USCG–2022–0899]
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Safety Zones; Fireworks Displays in
the Fifth Coast Guard District
Food and Drug Administration
Coast Guard, DHS.
Notification of enforcement of
regulation.
AGENCY:
ACTION:
21 CFR Part 516
[Docket No. FDA–2022–N–1128]
Defining Small Number of Animals for
Minor Use Determination; Periodic
Reassessment; Confirmation of
Effective Date
AGENCY:
Food and Drug Administration,
HHS.
Direct final rule; confirmation of
effective date.
ACTION:
The Food and Drug
Administration (FDA) is confirming the
effective date of December 14, 2022, for
the final rule that appeared in the
Federal Register of September 15, 2022.
The direct final rule revises the ‘‘small
number of animals’’ definition for dogs
and cats in our existing regulation for
new animal drugs for minor use or
minor species. This document confirms
the effective date of the direct final rule.
DATES: The effective date of December
14, 2022, for the direct final rule
published September 15, 2022 (87 FR
56583) is confirmed.
FOR FURTHER INFORMATION CONTACT:
Janah Maresca, Center for Veterinary
Medicine (HVF–50), Food and Drug
Administration, 7500 Standish Pl.,
Rockville, MD 20855, 301–796–5079,
email: janah.maresca@fda.hhs.gov.
SUPPLEMENTARY INFORMATION: In the
Federal Register of September 15, 2022
(87 FR 56583), FDA solicited comments
concerning the direct final rule for a 60day period ending November 14, 2022.
FDA stated that the effective date of the
direct final rule would be on December
14, 2022, 30 days after the end of the
comment period, unless any significant
adverse comment was submitted to FDA
during the comment period. FDA did
not receive any significant adverse
comments.
lotter on DSK11XQN23PROD with RULES1
SUMMARY:
Authority: 21 U.S.C. 360ccc–1, 360ccc–2,
371. Accordingly, the amendments issued
thereby are effective.
Dated: December 9, 2022.
Lauren K. Roth,
Associate Commissioner for Policy.
[FR Doc. 2022–27147 Filed 12–13–22; 8:45 am]
BILLING CODE 4164–01–P
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The Coast Guard will enforce
the Delaware River, Philadelphia, PA;
Safety Zone from 5:45 p.m. through 6:30
p.m. on December 31, 2022, and from
11:45 p.m. on December 31, 2022,
through 12:30 a.m. on January 1, 2023,
to provide for the safety of life on
navigable waterways during two bargebased fireworks displays. Our regulation
for marine events within the Fifth Coast
Guard District identifies the regulated
area for this event in Philadelphia, PA.
During the enforcement period, the
operator of any vessel in the regulated
area must comply with directions from
the Patrol Commander or any Official
Patrol displaying a Coast Guard ensign.
DATES: The regulation 33 CFR 165.506
will be enforced for the location
identified in entry 10 of table 1 to
paragraph (h)(1) from 5:45 p.m. through
6:30 p.m. on December 31, 2022, and
from 11:45 p.m. on December 31, 2022,
through 12:30 a.m. on January 1, 2023.
FOR FURTHER INFORMATION CONTACT: If
you have questions about this notice of
enforcement, you may call or email
Petty Officer Dylan Caikowski, U.S.
Coast Guard, Sector Delaware Bay,
Waterways Management Division,
telephone 215–271–4814, email
SecDelBayWWM@uscg.mil.
SUPPLEMENTARY INFORMATION: The Coast
Guard will enforce the safety zone in
table 1 to paragraph (h)(1) to 33 CFR
165.506, entry No. 10 for two bargebased fireworks displays from 5:45 p.m.
through 6:30 p.m. on December 31,
2022, and from 11:45 p.m. on December
31, 2022, through 12:30 a.m. on January
1, 2023. This action is necessary to
ensure safety of life on the navigable
waters of the United States immediately
prior to, during, and immediately after
fireworks displays. Our regulation for
safety zones of fireworks displays
within the Fifth Coast Guard District,
table 1 to paragraph (h)(1) to 33 CFR
165.506, entry 10 specifies the location
of the regulated area as all waters of the
Delaware River, adjacent to Penn’s
Landing, Philadelphia, PA, within a
500-yard radius of the fireworks barge
SUMMARY:
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position. The approximate position for
the display is latitude 39°56′52″ N,
longitude 075°8′9.28″ W. During the
enforcement period, as reflected in
§ 165.506(d), vessels may not enter,
remain in, or transit through the safety
zone unless authorized by the Captain
of the Port or designated Coast Guard
patrol personnel on-scene.
In addition to this notice of
enforcement in the Federal Register, the
Coast Guard will provide notification of
this enforcement period via broadcast
notice to mariners.
Dated: December 7, 2022.
Jonathan D. Theel,
Captain, U.S. Coast Guard, Captain of the
Port Delaware Bay.
[FR Doc. 2022–27042 Filed 12–13–22; 8:45 am]
BILLING CODE 9110–04–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 64
[CG Docket No. 02–278; FCC 22–85; FRID
116788]
Telephone Consumer Protection Act of
1991; Petition for Declaratory Ruling of
All About the Message, LLC
Federal Communications
Commission.
ACTION: Declaratory ruling and order.
AGENCY:
In this document, the Federal
Communications Commission
(Commission) finds that ‘‘ringless
voicemail’’ to wireless phones requires
consumer consent because it is a ‘‘call’’
made using an artificial or prerecorded
voice and thus is covered by of the 1991
Telephone Consumer Protection Act
(TCPA). The Commission denies a
request from All About the Message,
LLC (AATM) to declare that ringless
voicemail is not subject to of the TCPA
and the Commission’s implementing
rules. The Commission also denies
AATM’s alternative request for a
retroactive waiver of the Commission’s
rules.
DATES: The Declaratory Ruling and
Order was effective November 21, 2022.
FOR FURTHER INFORMATION CONTACT:
Mika Savir of the Consumer Policy
Division, Consumer and Governmental
Affairs Bureau, at mika.savir@fcc.gov or
(202) 418–0384.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s
Declaratory Ruling and Order, FCC 22–
85, CG Docket No. 02–278, adopted on
November 14, 2022, and released on
November 21, 2022. The full text of this
document is available online at https://
SUMMARY:
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Federal Register / Vol. 87, No. 239 / Wednesday, December 14, 2022 / Rules and Regulations
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www.fcc.gov/document/fcc-declaresringless-voicemails-are-subjectrobocalling-rules. To request this
document in accessible formats for
people with disabilities (e.g., Braille,
large print, electronic files, audio
format) or to request reasonable
accommodations (e.g., accessible format
documents, sign language interpreters,
CART), send an email to fcc504@fcc.gov
or call the FCC’s Consumer and
Governmental Affairs Bureau at (202)
418–0530 (voice).
Synopsis
1. In this document, the Commission
finds that ‘‘ringless voicemail’’ to
wireless phones requires consumer
consent because it is a ‘‘call’’ made
using an artificial or prerecorded voice
and thus is covered by the 1991
Telephone Consumer Protection Act
(TCPA). The Commission therefore
denies a request from All About the
Message, LLC (AATM) to declare that
ringless voicemail is not subject to the
TCPA and the Commission’s
implementing rules. The Commission
also denies AATM’s alternative request
for a retroactive waiver of the rules.
2. AATM filed its petition for a
declaratory ruling on March 31, 2017,
asking the Commission to find that
delivery of a voicemail message directly
to a consumer’s cell phone voicemail is
not covered by the TCPA and therefore
that AATM does not need consumer
consent for the ringless voicemail
messages. AATM argued that its ringless
voicemail message is not a ‘‘call’’ and
therefore the TCPA should not apply.
AATM’s position was that the ringless
voicemail service, and the process by
which the ringless voicemail is
deposited on a carrier’s platform, is
neither a call made to a mobile
telephone number nor a call for which
a consumer is charged and, therefore, is
a service that is not regulated.
3. The Commission found that
AATM’s ringless voicemail message is a
call to the consumer’s wireless number
and prerecorded voice messages sent via
this technology are, therefore, subject to
the TCPA. The Commission first found
that AATM’s ringless voicemail
constitutes a ‘‘call’’ subject to the
TCPA’s protections for the same reasons
the Commission previously found
computer-generated text messages sent
to a carrier’s text server to be calls for
purposes of the TCPA.
4. The Commission concluded
previously that text messaging is a call
for TCPA purposes when initiated with
an autodialer, stating that the TCPA
‘‘encompasses both voice calls and text
calls to wireless numbers including, for
example, short message service (SMS)
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16:00 Dec 13, 2022
Jkt 259001
calls, provided the call is made to a
telephone number assigned to such
service.’’ In 2015, the Commission
reiterated that finding and found that
internet-to-phone text messages, which
are sent to a carrier’s server then routed
to a consumer’s phone, are calls for
purposes of the TCPA because callers
address these computer-generated text
messages to a consumer’s wireless
telephone number.
5. The Commission concluded that
use of the wireless phone number
(either as part of an email string or by
entering the phone number on a web
portal) satisfied the TCPA’s requirement
that the call be ‘‘to any telephone
number assigned to a [wireless] service’’
because the wireless telephone number
is a necessary and unique identifier for
the consumer. The Commission
concluded that ‘‘by addressing a
message using the consumer’s wireless
telephone number . . . and sending a
text message to the consumer’s wireless
telephone number, the equipment dials
a telephone number and the user of
such technology thereby makes a
telephone call to a number assigned to
a wireless service as contemplated in
section 227(b)(1) of the Act.’’
6. The Commission stressed that,
‘‘[f]rom the recipient’s perspective,
internet-to-phone text messaging is
functionally equivalent to phone-tophone text messaging,’’ and that, ‘‘the
potential harm is identical to
consumers; unwanted text messages
pose the same cost and annoyance to
consumers, regardless of whether they
originate from a phone or the internet.’’
The Commission reasoned that the mere
fact that an extra step was involved in
dialing a call—in that case merely
adding a domain to the telephone
number—was not enough to deprive
mobile customers of the TCPA’s
protections as ‘‘the effect on the
recipient is identical.’’ To hold
otherwise ‘‘would elevate form over
substance, thwart Congressional intent
that evolving technologies not deprive
mobile consumers of the TCPA’s
protections, and potentially open a
floodgate of unwanted text messages to
wireless consumers.’’
7. AATM’s ringless voicemail is
identical in function to the internet-tophone texting the Commission
previously found subject to the TCPA.
In the case of internet-to phone text
messaging, the telephone number
assigned to the consumer serves as a
necessary and unique identifier.
Similarly, the telephone number
assigned to a consumer’s wireless phone
and associated with the voicemail
account is a necessary and unique
identifier for the consumer in the
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ringless voicemail context. One expert
states that the ‘‘steps involved in
sending a [ringless voicemail] message
are substantially the same as the
technology used and steps involved in
sending both mass text messages and
text to email addresses text messages’’
and that ‘‘[f]rom an engineering and
technical perspective, this software
delivery model that enables multiple
remote customers to deliver [ringless
voicemail] voice messages en masse to
cellular subscribers is precisely the
identical software delivery model that
mobile messaging companies use to
enable their customers to deliver text
messages en masse to cellular
subscribers.’’ Neither AATM nor any
other commenter challenges the
description of the technology used to
deliver the ringless voicemail messages
or the assertion that it is essentially
identical to the technology used to
deliver internet-to-phone text messages.
8. This finding is consistent with the
ordinary meaning of ‘‘call.’’ The TCPA
does not define ‘‘call’’ and courts have
turned to dictionary definitions to
determine its meaning, e.g., Webster’s
Third New International Dictionary
defines a call as ‘‘to communicate with
or try to get into communication with a
person by a telephone.’’ Ringless
voicemails meet this definition by
directing the messages by means of a
wireless phone number and by
depending on the transmission of a
voicemail notification alert to the
consumer’s phone (causing the
consumer to retrieve the voicemail
message). This finding is also consistent
with the legislative history and purpose
of the TCPA.
9. The Commission also rejected
AATM’s argument that ringless
voicemail is non-invasive. Consumers
cannot block these messages and they
experience an intrusion on their time
and their privacy by being forced to
spend time reviewing unwanted
messages in order to delete them. The
consumer’s phone may signal that there
is a voicemail message and may ring
once before the message is delivered,
which is another means of intrusion.
Consumers must also contend with their
voicemail box filling with unwanted
messages, which may prevent other
callers from leaving important wanted
messages. By contending that it is not
placing calls, AATM would deny
consumers the protection of the TCPA’s
consent requirement. The Commission
found that, as a matter of both statutory
interpretation and policy, such ringless
voicemail calls are subject to the TCPA.
10. The TCPA contains ‘‘unique
protections’’ for wireless consumers.
The Commission was unconvinced that
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Federal Register / Vol. 87, No. 239 / Wednesday, December 14, 2022 / Rules and Regulations
it should undermine the protections
against robocalls that the statute
provides to consumers by granting a
waiver to AATM. AATM has not
demonstrated any special circumstances
that warrant a waiver or that a waiver
of the Commission’s rules is in the
public interest. AATM is not precluded
from using its ringless voicemail
service, but it must do so in accordance
with the TCPA.
Federal Communications Commission.
Marlene Dortch,
Secretary.
December 1, 2022, make the following
correction:
nicholas.velseboer@noaa.gov, 978–281–
9260.
25.1101
SUPPLEMENTARY INFORMATION:
[Corrected]
1. On page 73892, starting in the first
column, Instruction 12a, paragraph a.
for 25.1101, is corrected to read:
‘‘a. Removing ‘‘$25,000’’ from
paragraphs (a)(1)(i) introductory text
and (b)(1)(i)(A) and adding ‘‘$50,000’’ in
its place, wherever it appears;’’.
■
[FR Doc. 2022–26673 Filed 12–13–22; 8:45 am]
William F. Clark,
Director, Office of Government-Wide
Acquisition Policy, Office of Acquisition
Policy, Office of Government-Wide Policy.
BILLING CODE 6712–01–P
[FR Doc. 2022–27005 Filed 12–13–22; 8:45 am]
BILLING CODE 6820–EP–P
DEPARTMENT OF DEFENSE
DEPARTMENT OF COMMERCE
GENERAL SERVICES
ADMINISTRATION
National Oceanic and Atmospheric
Administration
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
50 CFR Part 635
48 CFR Part 25
[Docket No. 220523–0019; RTID 0648–
XC573]
[FAC 2023–01; FAR Case 2020–014; Item
III; Docket No. FAR–2020–0014, Sequence
No. 1]
RIN 9000–AO14
Federal Acquisition Regulation: United
States-Mexico-Canada Agreement;
Correction
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Final rule; correction.
AGENCY:
DoD, GSA, and NASA
published a final rule amending the
Federal Acquisition Regulation (FAR) to
implement the United States-MexicoCanada Agreement Implementation Act
in the Federal Register of December 1,
2022. This document corrects an
erroneous instruction in that rule.
DATES: Effective December 30, 2022.
FOR FURTHER INFORMATION CONTACT: Mr.
Michael O. Jackson, Procurement
Analyst, at 202–208–4949 or by email at
michaelo.jackson@gsa.gov, for
clarification of content. For information
pertaining to status or publication
schedules, contact the Regulatory
Secretariat Division at 202–501–4755 or
GSARegSec@gsa.gov. Please cite FAC
2023–01, FAR Case 2020–014.
SUPPLEMENTARY INFORMATION: DoD, GSA,
and NASA are correcting an amendatory
instruction under part 25, section
25.1101.
In FR Doc. 2022–25960 appearing on
pages 73890–73894 in the issue of
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SUMMARY:
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Atlantic Highly Migratory Species;
Atlantic Bluefin Tuna Fisheries;
Closure of the General Category
December Fishery for 2022
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule; closure.
AGENCY:
NMFS closes the General
category fishery for large medium and
giant (i.e., measuring 73 inches (185
centimeters) curved fork length or
greater) Atlantic bluefin tuna (BFT) for
the December subquota time period, and
thus for the remainder of 2022. This
action applies to Atlantic Tunas General
category (commercial) permitted vessels
and highly migratory species (HMS)
Charter/Headboat permitted vessels
with a commercial sale endorsement
when fishing commercially for BFT.
Fishermen aboard General category
permitted vessels and HMS Charter/
Headboat permitted vessels may tagand-release BFT of all sizes, subject to
the requirements of the catch-andrelease and tag-and-release programs.
On January 1, 2023, the fishery will
reopen automatically.
DATES: Effective 11:30 p.m., local time,
December 10, 2022, through December
31, 2022.
FOR FURTHER INFORMATION CONTACT:
Erianna Hammond, erianna.hammond@
noaa.gov, 301–427–8503, Larry Redd,
Jr., larry.redd@noaa.gov, 301–427–8503,
or Nicholas Velseboer,
SUMMARY:
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Atlantic
HMS fisheries, including BFT fisheries,
are managed under the authority of the
Atlantic Tunas Convention Act (ATCA;
16 U.S.C. 971 et seq.) and the
Magnuson-Stevens Fishery
Conservation and Management Act
(Magnuson-Stevens Act; 16 U.S.C. 1801
et seq.). The 2006 Consolidated Atlantic
HMS Fishery Management Plan (FMP)
and its amendments are implemented
by regulations at 50 CFR part 635.
Section 635.27 divides the U.S. BFT
quota recommended by the
International Commission for the
Conservation of Atlantic Tunas (ICCAT)
and as implemented by the United
States among the various domestic
fishing categories, per the allocations
established in the 2006 Consolidated
HMS FMP and its amendments. NMFS
is required under the Magnuson-Stevens
Act to provide U.S. fishing vessels with
a reasonable opportunity to harvest
quotas under relevant international
fishery agreements such as the ICCAT
Convention, which is implemented
domestically pursuant to ATCA.
Under § 635.28(a)(1), NMFS files a
closure action with the Office of the
Federal Register for publication when a
BFT quota (or subquota) is reached or is
projected to be reached. Retaining,
possessing, or landing BFT under that
quota category is prohibited on or after
the effective date and time of a closure
notice for that category until the
opening of the relevant subsequent
quota period or until such date as
specified.
The current baseline quota for the
General category is 587.9 metric tons
(mt). The General category baseline
quota is suballocated to different time
periods. Relevant to this action, the
baseline subquota for the December time
period is 30.6 mt. To date for 2022,
NMFS has published several actions
that adjusted the General category
December 2022 time period quota (86
FR 72857, December 23, 2021; 87 FR
33049, June 1, 2022). Most recently,
NMFS increased the December subquota
to 50.1 mt through an inseason quota
transfer (87 FR 73504, November 30,
2022).
Closure of the December 2022 General
Category Fishery
To date, reported landings for the
General category December subquota
time period total approximately 38.5 mt.
Based on these landings, NMFS has
determined that the adjusted 2022
subquota of 50.1 mt is projected to be
reached shortly. Therefore, retaining,
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]]>Agencies
[Federal Register Volume 87, Number 239 (Wednesday, December 14, 2022)]
[Rules and Regulations]
[Pages 76425-76427]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-26673]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 64
[CG Docket No. 02-278; FCC 22-85; FRID 116788]
Telephone Consumer Protection Act of 1991; Petition for
Declaratory Ruling of All About the Message, LLC
AGENCY: Federal Communications Commission.
ACTION: Declaratory ruling and order.
-----------------------------------------------------------------------
SUMMARY: In this document, the Federal Communications Commission
(Commission) finds that ``ringless voicemail'' to wireless phones
requires consumer consent because it is a ``call'' made using an
artificial or prerecorded voice and thus is covered by of the 1991
Telephone Consumer Protection Act (TCPA). The Commission denies a
request from All About the Message, LLC (AATM) to declare that ringless
voicemail is not subject to of the TCPA and the Commission's
implementing rules. The Commission also denies AATM's alternative
request for a retroactive waiver of the Commission's rules.
DATES: The Declaratory Ruling and Order was effective November 21,
2022.
FOR FURTHER INFORMATION CONTACT: Mika Savir of the Consumer Policy
Division, Consumer and Governmental Affairs Bureau, at
[email protected] or (202) 418-0384.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's
Declaratory Ruling and Order, FCC 22-85, CG Docket No. 02-278, adopted
on November 14, 2022, and released on November 21, 2022. The full text
of this document is available online at https://
[[Page 76426]]
www.fcc.gov/document/fcc-declares-ringless-voicemails-are-subject-
robocalling-rules. To request this document in accessible formats for
people with disabilities (e.g., Braille, large print, electronic files,
audio format) or to request reasonable accommodations (e.g., accessible
format documents, sign language interpreters, CART), send an email to
[email protected] or call the FCC's Consumer and Governmental Affairs
Bureau at (202) 418-0530 (voice).
Synopsis
1. In this document, the Commission finds that ``ringless
voicemail'' to wireless phones requires consumer consent because it is
a ``call'' made using an artificial or prerecorded voice and thus is
covered by the 1991 Telephone Consumer Protection Act (TCPA). The
Commission therefore denies a request from All About the Message, LLC
(AATM) to declare that ringless voicemail is not subject to the TCPA
and the Commission's implementing rules. The Commission also denies
AATM's alternative request for a retroactive waiver of the rules.
2. AATM filed its petition for a declaratory ruling on March 31,
2017, asking the Commission to find that delivery of a voicemail
message directly to a consumer's cell phone voicemail is not covered by
the TCPA and therefore that AATM does not need consumer consent for the
ringless voicemail messages. AATM argued that its ringless voicemail
message is not a ``call'' and therefore the TCPA should not apply.
AATM's position was that the ringless voicemail service, and the
process by which the ringless voicemail is deposited on a carrier's
platform, is neither a call made to a mobile telephone number nor a
call for which a consumer is charged and, therefore, is a service that
is not regulated.
3. The Commission found that AATM's ringless voicemail message is a
call to the consumer's wireless number and prerecorded voice messages
sent via this technology are, therefore, subject to the TCPA. The
Commission first found that AATM's ringless voicemail constitutes a
``call'' subject to the TCPA's protections for the same reasons the
Commission previously found computer-generated text messages sent to a
carrier's text server to be calls for purposes of the TCPA.
4. The Commission concluded previously that text messaging is a
call for TCPA purposes when initiated with an autodialer, stating that
the TCPA ``encompasses both voice calls and text calls to wireless
numbers including, for example, short message service (SMS) calls,
provided the call is made to a telephone number assigned to such
service.'' In 2015, the Commission reiterated that finding and found
that internet-to-phone text messages, which are sent to a carrier's
server then routed to a consumer's phone, are calls for purposes of the
TCPA because callers address these computer-generated text messages to
a consumer's wireless telephone number.
5. The Commission concluded that use of the wireless phone number
(either as part of an email string or by entering the phone number on a
web portal) satisfied the TCPA's requirement that the call be ``to any
telephone number assigned to a [wireless] service'' because the
wireless telephone number is a necessary and unique identifier for the
consumer. The Commission concluded that ``by addressing a message using
the consumer's wireless telephone number . . . and sending a text
message to the consumer's wireless telephone number, the equipment
dials a telephone number and the user of such technology thereby makes
a telephone call to a number assigned to a wireless service as
contemplated in section 227(b)(1) of the Act.''
6. The Commission stressed that, ``[f]rom the recipient's
perspective, internet-to-phone text messaging is functionally
equivalent to phone-to-phone text messaging,'' and that, ``the
potential harm is identical to consumers; unwanted text messages pose
the same cost and annoyance to consumers, regardless of whether they
originate from a phone or the internet.'' The Commission reasoned that
the mere fact that an extra step was involved in dialing a call--in
that case merely adding a domain to the telephone number--was not
enough to deprive mobile customers of the TCPA's protections as ``the
effect on the recipient is identical.'' To hold otherwise ``would
elevate form over substance, thwart Congressional intent that evolving
technologies not deprive mobile consumers of the TCPA's protections,
and potentially open a floodgate of unwanted text messages to wireless
consumers.''
7. AATM's ringless voicemail is identical in function to the
internet-to-phone texting the Commission previously found subject to
the TCPA. In the case of internet-to phone text messaging, the
telephone number assigned to the consumer serves as a necessary and
unique identifier. Similarly, the telephone number assigned to a
consumer's wireless phone and associated with the voicemail account is
a necessary and unique identifier for the consumer in the ringless
voicemail context. One expert states that the ``steps involved in
sending a [ringless voicemail] message are substantially the same as
the technology used and steps involved in sending both mass text
messages and text to email addresses text messages'' and that ``[f]rom
an engineering and technical perspective, this software delivery model
that enables multiple remote customers to deliver [ringless voicemail]
voice messages en masse to cellular subscribers is precisely the
identical software delivery model that mobile messaging companies use
to enable their customers to deliver text messages en masse to cellular
subscribers.'' Neither AATM nor any other commenter challenges the
description of the technology used to deliver the ringless voicemail
messages or the assertion that it is essentially identical to the
technology used to deliver internet-to-phone text messages.
8. This finding is consistent with the ordinary meaning of
``call.'' The TCPA does not define ``call'' and courts have turned to
dictionary definitions to determine its meaning, e.g., Webster's Third
New International Dictionary defines a call as ``to communicate with or
try to get into communication with a person by a telephone.'' Ringless
voicemails meet this definition by directing the messages by means of a
wireless phone number and by depending on the transmission of a
voicemail notification alert to the consumer's phone (causing the
consumer to retrieve the voicemail message). This finding is also
consistent with the legislative history and purpose of the TCPA.
9. The Commission also rejected AATM's argument that ringless
voicemail is non-invasive. Consumers cannot block these messages and
they experience an intrusion on their time and their privacy by being
forced to spend time reviewing unwanted messages in order to delete
them. The consumer's phone may signal that there is a voicemail message
and may ring once before the message is delivered, which is another
means of intrusion. Consumers must also contend with their voicemail
box filling with unwanted messages, which may prevent other callers
from leaving important wanted messages. By contending that it is not
placing calls, AATM would deny consumers the protection of the TCPA's
consent requirement. The Commission found that, as a matter of both
statutory interpretation and policy, such ringless voicemail calls are
subject to the TCPA.
10. The TCPA contains ``unique protections'' for wireless
consumers. The Commission was unconvinced that
[[Page 76427]]
it should undermine the protections against robocalls that the statute
provides to consumers by granting a waiver to AATM. AATM has not
demonstrated any special circumstances that warrant a waiver or that a
waiver of the Commission's rules is in the public interest. AATM is not
precluded from using its ringless voicemail service, but it must do so
in accordance with the TCPA.
Federal Communications Commission.
Marlene Dortch,
Secretary.
[FR Doc. 2022-26673 Filed 12-13-22; 8:45 am]
BILLING CODE 6712-01-P
