The scope of a federal law blocking telemarketers from robocalling your home or cell phone without consent may be extended to VoIP calls if a recent federal court decision is allowed to stand.
The ruling against Verizon Wireless (Breda vs Cellco Partnership, Case No. 1:16-cv-11512Opens a new window ) by the 1s District US Circuit Court of Appeals sheds new light on calls initiated from an Automatic Telephone Dialing System, or ATDS, that were previously prohibited from connecting to VoIP numbers if the receiving party was charged for the call.
The Telephone Consumer Protection ActOpens a new window originally defined VoIP calls as an “other service,†which means that people who are called must prove they had been charged for an incoming robocall. Until now, federal law considered VoIP to be a distinctly different form of telecommunications from land-line calls and were not covered by the prohibition on automated calls.
It Began With a Switched Number
In the case originally heard in a lower federal court in Massachusetts, a cellphone number was switched to VoIP when the owner, Robin Breda, moved her number from Verizon to Republic Wireless, which was not a wireless provider. Under the terms of the customer’s contract, if the call could not be connected via VoIP it would be transferred over to conventional mobile networks.
When Breda sued Verizon, the Cellco Partnership’s owner, for violating the telephone consumer act, the telecom’s lawyers argued that the calls weren’t made to a cellular device but, rather, over VoIP. Specifically, Verizon said, the number was not assigned to a cellular account.
While the district court ruled in favor of Verizon, recognizing the presence of a VoIP account as an “other service,†the appeals court found otherwise. The ruling concluded that Breda was using a hybrid service, which the court defined as a service not exclusively used for VoIP calls. According to the ruling, that meant the hybrid service is distinguishable from an exclusive VoIP service.
Hybrid Services a Cause of Concern
The court voiced concern that the telephone protection act continues to be defended and that the growing number of hybrid services could compromise it.
The big issue for VoIP companies, and indeed anyone calling VoIP numbers, is the difficulty in detecting when a number assigned to VoIP might be one of these hybrid services, and when a call could end up being transmitted over a mobile network.
Verizon used this defence unsuccessfully in the case.
In addition, Verizon argued, even if such identification could be technically achieved, it’s not required under the the law — insisting that VoIP numbers are treated as distinctly different from mobile numbers, although the legislation does not anticipate the creation of hybrid services.
Key takeaways:
- There are additional issues that the case muddied, including the role of the Federal Communications Commission in defining whether interconnected VoIP services should fall under the telephone consumer protection act. Until now, it has been the responsibility of the regulator rather than the court.
- The case also undermines the data routinely used in customer contact strategies. At the moment, robocallers could fall foul of the law if numbers flagged as VoIP in their databases may prove to be otherwise.
- The issue may require further clarification, potentially from the Supreme Court, Congress or the FCC, because many commercial calling strategies have been undermined by the ruling.