Handicapping the Odds for Perpetually Full Voice Mailboxes

            The FCC will consider whether ringless voicemail messaging falls within a law that generally prohibits the transmission of unconsented voice and text messages (other than those from charities and political parties) to wired and wireless telephones.  See https://apps.fcc.gov/edocs_public/attachmatch/FCC-16-88A1.pdf.  Until now, the FCC has sided with the court of public opinion and interpreted the Telephone Consumer Protection Act, (codified at 47 U.S.C. § 227; see Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, Report and Order, 27 F.C.C.R. 1830 (2012)) in ways that provide support for curbing the cockroach-like infestation of spam calls, faxes and text messages.

            The FCC may reverse course this time, largely because the two Republican Commissioners have plenty of incentives to embrace something the Republican National Committee and the U.S Chamber of Commerce supports.  See https://www.recode.net/2017/5/23/15681158/political-campaign-robocall-ringless-voicemail-without-ringing-cellphone-republican. 

            This issue presents itself as something of a litmus test for an FCC, tightly managed by Chairman Ajit Pai.  Despite rhetoric about making the Commission more disciplined by fact finding and sound economics and law, Chairman Pai has evidenced a penchant for results-driven decision making that supports his agenda.  In this matter, he has very little rhetoric, rationale, law and evidence to support what his Party and the Chamber of Commerce endorse.  Allowing spammers to overload mailboxes will not create many jobs as the messages are software generated, often by foreign manufactured devices.  Framing spam as First Amendment protected commercial speech defies common sense and disregards the congressionally recognized rights of subscribers to be left alone.  Ignoring the clear and unambiguous language and mission of law would lend credence to the view that Chairman Pai is not the transparent and honest broker he claims to be.  Defying and frustrating just about every cellphone user does not seem a smart move.  The assertion that ringless voice mail does not trigger costs to carrier, or consumer simply does not pass the smell test.

            Despite plenty of reasons to determine that ringless voice mail falls within the Telephone Consumer Protection Act of 1991, it would not surprise me if the FCC finds a clever, weaselly way to accommodate the spammers.  I can envision a lofty invocation of regulatory forbearance, claims of statutory ambiguity and trust in the wisdom of the marketplace, despite a clear legislative mandate to regulate and unequivocal evidence that telephone subscribers cannot participate in a spam marketplace. 

            On the other hand, the FCC might restrict, or prohibit such calls largely because of consumer pushback and evidence that ringless voicemail does trigger costs for both subscribers and more importantly for carriers, despite not having to route calls all the way to a subscriber handset.   Subscribers incur costs in accessing their mailboxes, and in scrolling through and erasing the messages, particularly when something serious and personal follows a slew of spam.  Similarly, subscribers experience frustration when their mailboxes reach capacity and carrier surely incur some costs in having to generate recorded announcements that another voicemail message cannot be stored.

            Few at the FCC may recall another instance where carrier network resources were used without compensation.  When international telephone toll rates often exceeded $1.00 a minute clever entrepreneurs created a “call-back” device (later software) that converted an expensive inbound call into a lower priced outbound call.  Someone seeking to establish a voice connection initiated a call to the United States, but cut the call before completion and the start of metering.  Because signaling preceded the meter, one could provide the foreign telephone number that the device, or software would immediately use to initiate a call.

            International telephone companies like AT&T opposed the use of their networks without compensation.  Remarkably, the FCC rejected their complaints and sided with consumers who benefitted from lower international toll charges through arbitraging the difference between inbound and outbound rates.

            For ringless robocalling, both carrier and customer interests align, because both stakeholder incur costs.  Still it remains to be seen whether the FCC will find a way to accommodate key benefactors, e.g., the Republican Party and all types of spammers, to the detriment of other benefactors it usually serves, e.g., Verizon and other carriers.