What Counts as a Robocall: The Edge Cases the Law Still Covers

The two tests the law applies

The statute does not use the word robocall. It restricts calls made using an “automatic telephone dialing system” and calls using “an artificial or prerecorded voice.” A contact that satisfies either test is what everyone means by robocall, and each test has its own edge cases.

Edge case: a live agent after the pause

Many calls begin with silence, a click, or a beep, and then a person says hello. That pause is a predictive dialer connecting an answered call to an available agent. The call was placed by a machine, so it can meet the dialer test even though you spoke to a human.

The complication is a 2021 Supreme Court decision, Facebook v. Duguid, which held that equipment counts as an autodialer only if it uses a random or sequential number generator to store or produce the numbers it dials. Since then, companies argue their dialers work from customer lists rather than generated numbers. Whether a given system qualifies is a technical question answered with the vendor’s documentation in discovery. The prerecorded-voice test was not affected by that decision, which is why the recording cases are simpler.

Edge case: ringless voicemail

A ringless voicemail is a message inserted directly into your voicemail box without your phone ringing. Vendors marketed it as outside the TCPA because no “call” was placed. In 2022 the FCC rejected that argument and ruled that ringless voicemail is a call under the statute. A recorded marketing message that shows up in your voicemail needs the same written consent as one that rang your phone.

Edge case: AI-generated and cloned voices

In February 2024 the FCC declared that voices generated by artificial intelligence, including cloned voices of real people, are “artificial” voices under the TCPA. The ruling followed a robocall campaign using a cloned voice of the President before a primary election. The practical result: a robocall that sounds like a live person, a celebrity, or a company representative you know is treated the same as a traditional recording. It needs consent, and without it each call is a violation.

Edge case: soundboard calls

A soundboard call uses a live operator who does not speak. The operator listens and plays pre-recorded audio clips in response: a greeting, an answer to “is this a recording,” a pitch. The FTC ruled in 2016 that these calls deliver a prerecorded message and are treated as robocalls under the Telemarketing Sales Rule. Under the TCPA, the audio is a prerecorded voice by definition. The sign of a soundboard call is a response that does not quite match your question, or the same phrasing repeated word for word.

Edge case: texts, including ones a person sent

A text to a cell phone has been a call under the TCPA since a 2003 FCC ruling. The edge case is the text sent through a mass-messaging platform by a human who clicked send. Courts have divided on whether such platforms meet the post-Duguid dialer definition, and the outcome depends on how the platform stores and produces numbers. Texts that use a prerecorded or artificial element, or that are sent to numbers on the Do Not Call Registry for marketing, have independent grounds. Save the thread either way; the platform question is answered later with records.

What does not count

A person who dialed your number by hand and spoke to you live is not a robocall under either test, though the call may still violate the Do Not Call rules if it is telemarketing. A message from someone you know, sent from their own phone, is not a robocall. A call you consented to is a robocall that happens to be legal.

The edge cases share one feature: you do not have to resolve them yourself. Describe what you heard or received, save the voicemail, the text thread, or the call log, and let a free review with Max Morgan, Esq. sort the technology out. No fee unless you recover.

Related: What is a robocall? · What is an autodialer (ATDS)? · AI and voice-cloning robocalls · Is a prerecorded voicemail a TCPA violation?