Robocalls are part of modern life for many people, whether they arrive as appointment reminders, school alerts, political messages, or advertisements. This article explains what robocalls are, when they may be legal or illegal, how they differ from voicemail drop technology, and what businesses and callers should know before using them.
What Are Robocalls?
In relation to the Telephone Consumer Protection Act (TCPA), a robocall is not defined by the TCPA, but generally refers to a phone call that is made using either regulated automated dialing technology, a prerecorded voice message, or an artificial voice message (this includes AI messages).
In everyday use, many people think of robocalls as calls that begin with a recording as soon as they answer. But even a call involving a live person speaking in real time may be a robocall if it was made using certain automated dialing technology.
People often associate robocalls with scams designed to pressure people into sharing their personal information or money. But there are many legitimate and helpful forms of robocalls, such as flight updates, fraud alerts, prescription notifications, and advertisements.
Indeed, the federal government was so convinced of the value of robocalls that Congress created an exemption for its own debt-collection robocalls; however, the Supreme Court struck down that TCPA amendment as unconstitutional because it allowed the government to live by one set of rules that the rest of us don’t have.
Are Robocalls Legal?
A common misconception is that all robocalls are illegal. But that is not the case.
For example, robocalls made for emergency purposes are permitted. Informational robocalls, such as ones containing appointment reminders or political messages, require the called party’s prior express consent. Robocalls made for telemarketing purposes are the most highly regulated and require the called party’s prior express written consent. A non-emergency robocall made without the called party’s prior express consent is prohibited under the TCPA, unless there is an applicable exception.
The TCPA rules and FCC-implementing regulations pertaining to so-called robocalls are found at 47 U.S.C. § 227(b)(1)(A)-(B) and 47 C.F.R. § 64.1200(a)(1)-(3).
The TCPA’s regulations regarding calls made using certain automated dialing technology do not apply to calls to residential telephone lines (unless it happens to be a special kind of VoIP line where the person incurs per-call charges, much like cell phone plans used to be in the early 1990s).
It is important to remember that a robocall made for telemarketing purposes must also comply with the TCPA’s rules related to the National Do-Not-Call Registry and internal-do-not-call lists.
Robocalls vs. Voicemail Drop
Robocalls and voicemail drop are separate things. But a voicemail drop can involve certain technology and/or type of message that can render it a robocall.
As discussed above, robocall usually refers to a call that is dialed automatically or delivers a prerecorded or artificial voice message during the call. Voicemail drop, sometimes called ringless voicemail, generally refers to technology that places a recorded message directly into a recipient’s voicemail box without a traditional live conversation.
If the voicemail drop is made using certain automated dialing technology, depending on its content, it may be subject to the TCPA’s autodialer rules, 47 U.S.C. § 227(b)(1)(A) and 47 C.F.R. § 64.1200(a)(1)-(2).
If the voicemail drop is leaving an artificial or prerecorded voice message, depending on its content, it would be subject to the TCPA’s rules concerning such messages, 47 U.S.C. § 227(b)(1)(A) and (B), and 47 C.F.R. § 64.1200(a)(1)-(3).
If the voicemail “drop” is just a live agent leaving a message that involves telemarketing, it is subject to the TCPA’s rules for the National Do-Not-Call Registry.
Voicemail drop can be an effective, less intrusive marketing tool, provided it is being used compliantly. Readymode offers voicemail drop to qualifying Readymode iQ customers, built with compliance in mind.
What You Should Know to Stay Compliant When Using Robocalls
For robocalls, the most important compliance principle is consent. Before launching a robocall campaign, a caller should understand what kind of message it plans to send (the content and whether it will be live-agent, prerecorded, or artificial voice), what technology it will use, and whether the recipients have given the level of permission the law requires.
For telemarketing robocalls, prior express written consent is a must. Callers should also review whether the numbers being contacted are wireless or residential, maintain up-to-date internal do-not-call procedures, honor opt-out requests promptly, and avoid misleading caller ID practices. They should also pay attention to state law requirements, which may impose additional restrictions beyond federal law.
Callers should also remember that the law evolves as regulators and courts address new technologies, including AI-generated voices and newer messaging tools. In other words, a calling practice that seems innovative from a marketing perspective may still raise legal issues if it reaches consumers in an automated or prerecorded way without proper consent.
A careful review of calling practices, scripts, consent language, and vendor relationships can help reduce risk before a campaign begins.
Final Thoughts
In short, robocalls are not a single, simple category. The significant usage of robocalls for nefarious purposes has led to misconceptions. But they can and do serve legitimate purposes. Understanding the difference between the types of robocalls and when they are permitted can help callers and businesses make better decisions and avoid unnecessary risk.
This article is only offered for informational purposes; it is not legal advice. Please consult a qualified attorney for your specific compliance needs.
Joe Bowser
Joe Bowser is a partner at Roth Jackson. He has been practicing communications and marketing law for two decades. He advises and defends calling and SMS platform providers (like Readymode), carriers/VoIP providers, and heavy users of those services in their wide range of compliance needs. In his spare time, you can find him taking his boys to their sports, getting in a workout of his own, or catching an Arsenal match.
