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July 2018

Case of First Impression: Federal District Court Finds Ringless Voicemail is a “Call” Under the TCPA

In a case of first impression nationally, a Federal District Court recently denied a defendant’s motion for summary judgment and held that ringless voicemail is a “call” under the federal Telephone Consumer Protection Act (TCPA).  Saunders v. Dyck O’Neal, Inc., Case No. 1:17-CV-335, 2018 WL 3453967 (W.D. Mich. July 16, 2018).  Putting aside, for now, whether it was properly decided, the decision now places ringless voicemail, also known as direct drop voicemail and direct-to-voicemail, in the same playing field as traditional calls and text messages for liability purposes under the TCPA.  The decision will undoubtedly put smiles on the plaintiffs’ TCPA bar, but with the ever evolving law in TCPA-land and the Court’s failure to fully appreciate the technological and legal differences between traditional calls and ringless voicemail, future decisions reaching a different outcome are entirely possible.  For now, however, those using ringless voicemail as part of their business should be wary of the technology and its potential TCPA liability given this ruling.

By way of background, on April 12, 2017, plaintiff Karen Saunders filed suit against defendant Dyck O’Neal, Inc. for violations of the TCPA.  Plaintiff claimed that from 2015 to 2017 defendant called repeatedly and left numerous voicemails on plaintiff’s telephone.  Plaintiff alleged that defendant used a vendor, VoApp, to leave prerecorded ringless voicemails on her phone.  Specifically, plaintiff alleged that from April 2016 to April 2017, defendant left approximately 30 ringless voicemails on plaintiff’s phone.  Each time, plaintiff received a notification on her phone that she had a new voicemail.  Defendant subsequently moved for summary judgment on the basis that direct dropped or ringless voicemails are not “calls” under the TCPA.  See 47 U.S.C. § 227(b)(1)(A)(iii) (the TCPA prohibits any person within the United States from “mak[ing] any call … using any automatic telephone dialing system or an artificial or prerecorded voice … to any telephone number assigned to a paging service, cellular telephone service … or any service for which the called party is charged for the call.”).

The Court began its analysis referencing several federal decisions and noting that “[c]ourts have consistently held that voicemail messages are subject to the same TCPA restrictions as traditional calls.”  Similarly, the Court was persuaded by the fact that courts have analogously found text messages to be “calls” under the TCPA given the ordinary, contemporary and common meaning of the verb “to call” (i.e., to communicate with or try to get into communication with a person by telephone), and the fact text messaging was not available when the TCPA was enacted in 1991.  The Court was also persuaded by the statutory purpose of the TCPA – to protect the privacy interests of individuals from the nuisance and invasion of privacy by automated telephone calls.  Last, the Court found both Congress’ use of the broad descriptor “any” in regulating “any call,” and the FCC’s construing the TCPA broadly to find that sending a text message to a consumer by email or web browser to fall under the purview of the TCPA, to be relevant in determining that a ringless voicemail is a “call” under the TCPA.

The Court rejected defendant’s argument that it did not dial or call plaintiff’s phone.  Specifically, defendant argued that the delivery of a voicemail message to the server space associated with the plaintiff, without placing an actual traditional call to the consumer’s phone, is not a call under the TCPA.  The Court held that defendant’s use of ringless voicemail is a “call” and falls under the purview of the TCPA.  Construing the TCPA as a remedial statute, the Court found that the statute itself casts a wide net and regulates “any” call, which includes communications, or an attempt to communicate, via telephone.  The Court determined that by leaving a voicemail directly in the server space associated with plaintiff’s phone, defendant was attempting to communicate with plaintiff via her telephone.  The Court found this to be the definition applied to the TCPA’s use of “call.”  Moreover, the Court also determined that defendant’s automated message instructing plaintiff to call it at a specific phone number “invited” additional communication over the telephone.

The Court concluded that the effect on plaintiff is the same whether her phone rang with a call before the voicemail is left, or whether the voicemail is left directly in her voicemail box.  The Court also concluded that the effect on plaintiff is also the same as receiving a text message (also regulated under the TCPA) – each time, she received a notification on her phone that she had a new message, and had to take steps to review or delete the message.  Indeed, the Court found that voicemails are arguably more of a nuisance to consumers than text messages.  Thus, the Court held that to limit the TCPA to instances where defendant specifically dialed plaintiff’s phone number and then reached her voicemail, and exclude defendant’s back door into plaintiff’s voicemail box, would be an absurd result. 

Did the Court get it right?  At first blush, it is easy to see how one could conclude that ringless voicemail is regulated under the TCPA.  On the surface, courts should be careful to quickly analogize traditional calls to ringless voicemail, particularly since, in the latter, no call is actually ever made to or received by the consumer’s phone.  The ringless voicemail never touches the phone and, instead, goes to a server for storage.  This is entirely different than a traditional call made to and received by the phone, a call made to and received by a phone that goes to voicemail, or a text message received on a phone.  Conversely, there are many reasons why the TCPA should (or does) not apply to or prohibit ringless voicemail technology: no call is made to a consumer’s phone when ringless voicemail messages are transmitted to a server; because no call is ever made, there is no charge or fee to the consumer for receipt of ringless voicemail; and Title II of the Communications Act of 1934 does not regulate voicemail service – voicemail is an enhanced or information service, not a telecommunications service under Title II of the Communications Act and regulation of ringless voicemail under the TCPA would not further other Congressional goals of the TCPA.  Given these technological and legal issues, and consistent with TCPA practice, there will likely be diverging court opinions.

Commercial Litigation

Thomas C. Blatchley

Commercial Litigation
Consumer Protection Litigation