Ringless Voicemail and the TCPA: How Businesses Defend These Claims

A ringless voicemail is built to skip the ring, but the FCC has treated it since November 2022 as a prerecorded-voice call that needs consent. Each one sent to a cell phone without consent can carry $500 in statutory damages, and a court may raise that to as much as $1,500 if it finds the violation willful or knowing. Every court decision the FCC collected treated these messages as calls. I’d focus a defense on consent, on how the message was recorded, and on who sent it.

What did the FCC decide about ringless voicemail?

The FCC found that a ringless voicemail to a wireless number is a call under the TCPA’s prerecorded-voice rule, so it needs consent. A ringless voicemail company, All About the Message, LLC, had petitioned in 2017 for a ruling that dropping a message straight onto a carrier’s voicemail server wasn’t a call.

The Commission disagreed in its Declaratory Ruling and Order, FCC 22-85, released November 21, 2022, in CG Docket No. 02-278. It reasoned that ringless voicemails meet the ordinary meaning of a call “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.” It denied the company’s request for a retroactive waiver.

The same ruling states: “Our Declaratory Ruling applies to any ringless voicemail technology that uses the end user’s mobile telephone number to direct the ringless voicemail message to the end user’s mobile phone and our analysis of consumer harm would apply to any technology that does so.”

A ringless voicemail, sometimes called a direct-to-voicemail message or direct drop, is a recording deposited into a mailbox without a normal ring. The FCC noted that the phone “may ring once before the message is delivered.” A prerecorded voice is audio recorded before the call, not a person speaking live.

After McLaughlin, does the FCC ruling still control?

Not as binding law, but it hardly matters here. In June 2025, the Supreme Court held in McLaughlin Chiropractic Associates v. McKesson Corp. that “The District Court is not bound by the FCC’s interpretation of the TCPA.” A court in a private suit now decides for itself what “call” means, giving the FCC’s view respect but not deference. Our post on what McLaughlin means for FCC rulings covers the decision itself.

That opening is narrow for ringless voicemail because courts had already reached the FCC’s answer without leaning on it. The first decision on the question came in 2018 from a federal court in Michigan, four years before the FCC ruled. When the same court revisited the case in 2025, it noted in Saunders v. Dyck O’Neal, Inc. that “The Court previously held in this case that the direct drop voicemails are calls under the TCPA.” The FCC’s order collected several other district court decisions reaching the same result.

The Ninth Circuit, whose decisions bind federal courts in California, has also read the word “call” for itself since the Supreme Court ended Chevron deference. In Howard v. Republican National Committee, decided January 13, 2026, it concluded that, “even under de novo review,” the reasoning of its 2009 decision in Satterfield v. Simon & Schuster still supports treating a text message as a call. The plaintiff asked the full court to rehear the case in late January 2026. That petition was pending when this post was written. A voicemail is closer to a phone call than a text is, so I wouldn’t make the argument that the message isn’t a call the center of a ringless voicemail defense.

Is consent still the best defense?

Yes. In my view, the consent record decides more ringless voicemail cases than any other issue, and the rules depend on what the message says.

The statute bars making a call “using any automatic telephone dialing system or an artificial or prerecorded voice” to a cell number unless the call is for emergency purposes or “made with the prior express consent of the called party,” under 47 U.S.C. § 227(b)(1)(A). For ringless voicemail, the prerecorded-voice half of that sentence does the work. An autodialer is equipment with the capacity to store or produce numbers using a “random or sequential number generator” and to dial them, under § 227(a)(1), and the FCC noted in FCC 22-85 that its ringless voicemail ruling didn’t turn on that definition because these messages use a prerecorded voice. The consent requirement applies to informational messages too. A payment reminder or appointment message dropped into a customer’s voicemail still needs consent unless one of the FCC’s narrow exemptions applies, though the consent doesn’t need to be written.

Marketing messages face a higher bar under the FCC’s rules. As FCC 22-85 put it, “Prior express consent must be written for certain telemarketing calls to wireless numbers that introduce an advertisement or constitute telemarketing.” The rule in 47 C.F.R. § 64.1200(a)(2) requires prior express written consent, meaning a signed agreement (an electronic signature can count) that authorizes the seller to send prerecorded marketing messages to the number and includes the disclosures the rule requires. The rule excepts calls by tax-exempt nonprofits and health-care messages from HIPAA-covered entities or their business associates from the writing requirement, though those calls still need ordinary prior express consent. Because written consent must authorize the seller whose message was sent, a purchased lead’s consent form deserves a close read.

Check two more consent points. First, check whether the lead came through a comparison-shopping form, since the FCC’s one-to-one consent rule for those forms never took effect. I covered that in a post on the vacated one-to-one consent rule. Second, check revocations. Under § 64.1200(a)(10), a person can revoke consent “by using any reasonable method to clearly express a desire not to receive further calls or text messages from the caller or sender,” and the request must be honored within a reasonable time not to exceed ten business days. If a recipient calls the number in the message to say stop, and that call reaches a sales line that doesn’t log opt-outs, the consent defense can fail for every later drop.

The FCC’s rules also require a voicemail opt-out path for telemarketing messages. Under § 64.1200(b)(3), “When the artificial or prerecorded-voice telephone message is left on an answering machine or a voice mail service, such message must also provide a toll free number that enables the called person to call back at a later time and connect directly to the automated, interactive voice- and/or key press-activated opt-out mechanism and automatically record the called person’s number to the caller’s do-not-call list.” A marketing drop script that leaves only a local callback number doesn’t meet that rule.

Was the message really prerecorded?

A true drop is a stored recording, so this defense usually won’t fit the drops themselves. It matters when a complaint sweeps in ordinary voicemails that sales reps left by hand. The prerecorded-voice claim needs an artificial or prerecorded voice, so a voicemail left by a person speaking live doesn’t fit it.

The Ninth Circuit described that line in Howard, explaining that “a voicemail message that consists of a prerecorded robocall, rather than a recording of a live speaker contemporaneously leaving a message, intrudes on the recipient’s privacy as soon as he or she plays back the message and is subjected to listening to an entirely prerecorded voicemail message.” The court’s holding was about a video attached to a text, which I discussed in a post on Howard and video texts. A drop campaign that sends one recording to thousands of numbers is squarely prerecorded. A rep who reaches voicemail and speaks a message live isn’t.

When a complaint lumps the two together, and before conceding the point, I’d get the audio files and the platform’s send logs, which should show which messages came from a stored recording. An AI-generated voice doesn’t get around the rule, though. The FCC confirmed in FCC 24-17 in February 2024 that AI-generated voices count as artificial voices under the TCPA. Under the FCC’s reading, a synthetic, personalized message needs consent absent an emergency purpose or exemption, and I’d expect courts to give that reading weight.

Can someone sue over a voicemail that never rang?

The Sixth Circuit says yes, and the Ninth Circuit’s cases point the same way. Defendants have argued that a silent, unnoticed message causes no concrete injury, so there’s no standing.

The Sixth Circuit rejected that argument in Dickson v. Direct Energy, LP, 69 F.4th 338 (6th Cir. 2023), where the district court had dismissed a claim based on one ringless voicemail. The appeals court treated the silence as a question of degree, not kind, and held that “Dickson suffered such a harm when Direct Energy deposited an unsolicited RVM into his phone.” In a debt-collection case, the Ninth Circuit cited Dickson in Six v. IQ Data International, Inc. (2025) as “holding that one silently delivered voicemail in violation of the TCPA was a concrete injury.” Its own rule is similar: in Van Patten v. Vertical Fitness Group, LLC, it explained that “Unsolicited telemarketing phone calls or text messages, by their nature, invade the privacy and disturb the solitude of their recipients.”

Standing matters more in a class action. The Supreme Court held in TransUnion LLC v. Ramirez that “Every class member must have Article III standing in order to recover individual damages.” I’d argue that a drop that failed or never reached a mailbox can’t support anyone’s damages claim. Ask whether the platform kept a delivery status for each attempt. In my view, that report is one of the most underused documents in these cases, because it can cut the class to the people who actually received something.

Who is liable when a vendor sent the voicemails?

The business that ordered the campaign can be liable, and depending on its role, the vendor can face claims too.

The FCC’s 2013 Dish Network ruling explains that a seller that doesn’t itself initiate the calls “nonetheless may be held vicariously liable under federal common law principles of agency for violations of either section 227(b) or section 227(c) that are committed by third-party telemarketers.” The Ninth Circuit agreed in Gomez v. Campbell-Ewald Co., holding “that a defendant may be held vicariously liable for TCPA violations where the plaintiff establishes an agency relationship, as defined by federal common law, between the defendant and a third-party caller.”

A business that runs its own drop campaign may not even need agency law to be on the hook. In its 2025 ruling in Saunders, the court held that a debt collector could be directly liable for initiating voicemails its vendor physically sent, because the collector “prepared the list of phone numbers, determined the prerecorded message, and controlled when the calls were made.” In the alternative, it held the collector could be vicariously liable under actual and apparent authority. The court left the consent question for later. The collector pointed to its contract, which it said disclaimed any agency relationship. On that argument, the Saunders court wrote that “The contract is not dispositive.”

The vendor isn’t automatically a bystander either. In Gomez, which involved a marketing consultant that ran a text campaign for its client, the Ninth Circuit said it “makes little sense to hold the merchant vicariously liable for a campaign he entrusts to an advertising professional, unless that professional is equally accountable for any resulting TCPA violation.” I’d expect the practical vendor fight to be between the business and the platform or lead source, over indemnity and who kept the consent records. A company that uploads its own list and recording should assume it’s the caller. Vendor defenses do more work when an outside lead generator or agency picked the numbers.

Exposure and defenses for ringless voicemail claims

What to collect when a ringless voicemail claim arrives

1. Put a litigation hold on the drop platform’s records for the numbers in the demand: every attempt, its time stamp, its delivery status, and the consent record for that number.
2. Pull every opt-out and internal do-not-call entry for those numbers, with dates, including requests that came in by phone to the callback number.
3. Pull the National Do Not Call Registry scrub records and the version dates for any marketing campaign. The Registry is the federal list of numbers whose subscribers have asked not to get telemarketing calls.
4. Gather the platform and lead-source contracts, the scripts, and the audio files actually sent, including any AI-voice files.
5. Talk to a lawyer before answering the demand, calling the claimant, or offering anything to settle.

For claims involving ringless voicemail and prerecorded-message campaigns, the firm’s California TCPA defense page sets out what the defense looks at first.

Questions businesses ask about ringless voicemail

Did the FCC ruling only apply to drops sent after November 2022?

Probably not. The FCC made the ruling effective on release, but it described the ruling as necessary “to resolve a controversy and remove uncertainty about ringless voicemail”, and it denied the petitioner’s request for a retroactive waiver. A business defending older drops shouldn’t expect the ruling’s date to work as a safe harbor, though the time limits on TCPA claims still apply to old messages.

Do informational ringless voicemails need consent?

Yes. The statute’s consent requirement for prerecorded calls to cell phones doesn’t depend on content, so payment reminders and appointment notices are covered unless an FCC exemption applies. Informational messages need prior express consent. In the Ninth Circuit, any consent must fit the call, because “an effective consent is one that relates to the same subject matter as is covered by the challenged calls or text messages”. Written consent is the FCC’s requirement for marketing messages.

Are we liable if our vendor sent the voicemails?

You can be, and the risk is highest if you chose the list, the message, and the timing, as the business did in Saunders. Courts apply agency principles to vendor-sent calls, and that court held that a business could be directly liable for drops its vendor physically sent because the business controlled the campaign. A contract that disclaims agency wasn’t enough there. Indemnity and record-keeping terms in the contract are where I’d put the effort.

Defending a ringless voicemail claim

If your company is accused of sending ringless voicemails without consent, I’d start with the consent records and the platform’s delivery logs, because they go to the size of the case. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving ringless voicemail and prerecorded-message campaigns. Contact Rosenberger + Kawabata online for a free and confidential consultation, or call (310) 894-6921.

Sources

The statute is the Telephone Consumer Protection Act at 47 U.S.C. § 227. The FCC’s rules are at 47 C.F.R. § 64.1200, as published in the eCFR through February 2, 2026. The FCC orders are the ringless voicemail ruling, FCC 22-85 (released Nov. 21, 2022); the Dish Network declaratory ruling, FCC 13-54 (released May 9, 2013); and the AI-voice ruling, FCC 24-17 (released Feb. 8, 2024).

The court decisions are McLaughlin Chiropractic Associates v. McKesson Corp., 606 U.S. 146 (2025); TransUnion LLC v. Ramirez, 594 U.S. 413 (2021); Howard v. Republican National Committee, No. 23-3826 (9th Cir. Jan. 13, 2026); Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037 (9th Cir. 2017); Six v. IQ Data International, Inc., 129 F.4th 630 (9th Cir. 2025); Gomez v. Campbell-Ewald Co., 768 F.3d 871 (9th Cir. 2014), aff’d on other grounds, 577 U.S. 153 (2016); Dickson v. Direct Energy, LP, 69 F.4th 338 (6th Cir. 2023); and Saunders v. Dyck O’Neal, Inc., No. 1:17-cv-335 (W.D. Mich. Feb. 19, 2025).

This post is general information about the Telephone Consumer Protection Act and related laws as of February 2, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Courts and the FCC change the rules in this area often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.