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 voice mail 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 voice mail, it made me really angry. It was literally a telemarketing voice mail to try to sell telemarketing systems."
Kemp had just experienced a technology gaining traction called ringless voice mail, the latest attempt by telemarketers and debt collectors to reach the masses. The calls are quietly deposited through a back door, directly into a voice mail 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 voice mail 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' voice mail boxes would be clogged with automated messages, they say, making it challenging to unearth important calls.
If unregulated, ringless voice mail messages "will likely overwhelm consumers' voice mail 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 voice mail with collection messages."
The commission is collecting public comments on the issue after receiving a petition from a ringless voice mail 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 voice mail 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 time line for resolving such petitions, and the commission cannot comment on the petition until a ruling is issued.
All About the Message wants the FCC to rule that its voice mail 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 voice mail messages" when they are delivered directly to a voice mail service provider and subscribers are not charged for a call.
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 voice mail 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 voice mail 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 zero-interest 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 voice mail 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."
Consumer advocates and other experts argue that the courts and the FCC have established that technology similar to ringless voice mail — which delivered mass automated texts to cellphones — was deemed the same as calls and was covered by the consumer protection law.