One District Judge Says Ringless Voicemails Are TCPA ‘Calls’

Financial Services Law

A ringless voicemail message (RVM)—technology that allows messages to be left directly on a consumer’s cell phone without requiring the consumer to answer—can be a handy communication tool for any business, but particularly so for financial services companies concerned with possible hang-ups or, worse, improper debt collection allegations. As a bonus, many have asserted that because most (but not all) RVM software or vendors in the marketplace today do not make the recipient’s phone ring, an RVM is not a “call” and therefore not regulated by the Telephone Consumer Protection Act (TCPA). In a first-of-its-kind decision, however, a federal district judge in Michigan disagreed and declared in a published dispositive opinion that an RVM is indeed a call within the meaning of the TCPA.

What happened

In an opinion issued on July 16, 2018, in Saunders v. Dyck O’Neal, U.S. District Judge Gordon J. Quist, Western District, Michigan, noted Congress’ broad descriptor “any” in prohibiting “any call,” and pointed out that the Federal Communications Commission (FCC) and the Supreme Court have generally construed the TCPA broadly in ruling that new and emerging telephone technologies are governed by the TCPA, including voicemail messages, text messages and email-initiated text messages. Judge Quist also noted that the plaintiff received the notifications and listened to the voicemails on her phone, so the practical effect is the same, regardless of whether her phone rang before the voicemail was left. In Judge Quist’s view, a contrary holding would be “absurd.”

RVMs are a relatively new technology, typically seen in the debt collection context, whereby messages are sent directly to the consumer’s voicemail, with the intention that the consumer’s phone does not ring (though sometimes it may). RVMs afford senders some peace of mind, allowing them to communicate with consumers in a way that increases the likelihood that their messages will be received and listened to, as compared with making repeated calls, as well as permitting them to deliver uniform, easily trackable messages. The technology generally works by sending a signal to “busy” the phone line, which causes the message to be routed directly to the voicemail server, which is generally separate from the telephone line. Companies that sell and utilize the technology have argued that RVMs are not calls pursuant to the TCPA because the message is sent directly to the voicemail server, as opposed to the phone line. Voicemail servers are not “common carrier” services, but “enhanced information services,” which are exempt from the TCPA. Opponents argue that RVMs are just as invasive as phone calls, not functionally different from a text message, and cost the consumer the same time and money to access as regular phone calls. Until Judge Quist, no federal or state judge had weighed in on the controversy, at least not in a published opinion, though there have been other TCPA cases involving this technology that have not been the subject of a dispositive opinion considering whether an RVM complies with the TCPA.

In the case at bar, the defendant had apparently left approximately 30 such messages on Saunders’ voicemail over the course of a year in connection with an outstanding debt. The defendant had used the VoApps system (a widely used RVM vendor) to deliver the voicemails. The plaintiff brought suit, seeking to represent a nationwide class of individuals who received these RVMs. The defendant moved for summary judgment on the theory that its RVMs were not calls regulated by the TCPA, to no avail.

In his ruling, Judge Quist adopted the plaintiff’s viewpoint, criticizing the argument that RVMs are “enhanced information services” exempt from the TCPA as an “attempt[] to blur the law,” and explaining that although voicemail is regulated generally as an information service, when connected to a call, it “can be considered” under the TCPA, citing to several older cases holding that unanswered calls and the resulting voicemails are still calls within the TCPA’s definition. Judge Quist did not elaborate on what call an RVM is “connected” to, however.

Notably, the FCC has not yet officially opined on whether this new technology constitutes a call governed by the TCPA and has issued no specific regulations regarding RVMs. All About the Message, LLC, filed a petition with the FCC in 2017 seeking a declaratory ruling that the technology was not regulated by the TCPA, but after thousands of consumers filed comments in opposition, it withdrew its petition. This was not the first attempt to gain clarity from the FCC. VoApps—the same company used in Saunders—also filed a petition with the FCC in 2014, but it was also withdrawn prior to a ruling. Although they may (and likely will) come up at the FCC again, RVMs are presently not under formal consideration or the subject of a pending petition.

To read the full opinion in Saunders v. Dyck O’Neal, click here. At the time of publication of this article, no notice of appeal has been filed on the docket.

Why it matters

Saunders is perhaps an attempt at a “common sense” approach to RVMs—i.e., if traditional voicemails and text messages are calls regulated by the TCPA, then RVMs should be similarly regulated. But because RVMs are not technically connected to any common carrier call, Judge Quist’s decision could be vulnerable to review. In the meantime, we expect competing views on this issue from other courts. Companies would be well-advised to ensure that they have proper consent under the TCPA when using RVM technology until there is further clarity on whether the technology will be covered by the TCPA. Manatt’s TCPA compliance and class action defense team will continue to report on this emerging area of law.