A federal judge in Michigan is the first to declare in a published dispositive opinion that a ringless voicemail message (RVM) is a “call” regulated by the Telephone Consumer Protection Act (TCPA). In an opinion issued on July 16, 2018, in Saunders v. Dyck O’Neal, U.S. District Judge Gordon J. Quist of the U.S. District Court, Western District, Michigan, noted Congress’ broad descriptor “any” in prohibiting “any call,” and noted 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 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). 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.

Defendant Dyck O’Neal had apparently left approximately 30 such voicemail messages on Saunders’ voicemail over the course of a year in connection with an outstanding debt. Defendant had used the VoApps system to deliver the voicemails. Plaintiff brought suit, seeking to represent a nationwide class of individuals who received these RVMs. Defendant moved for summary judgment on the theory that its RVMs were not “calls” regulated by the TCPA, to no avail.

In his ruling Monday, Judge Quist adopted 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.

The FCC has not yet opined on whether this new technology constitutes a “call” governed by the TCPA and has made 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 also filed a petition with the FCC in 2014, but it was also withdrawn prior to a ruling.

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

Why it matters: Saunders is perhaps an attempt at a “commonsense” approach to RVMs—if traditional voicemails and text messages are “calls” regulated by the TCPA, then RVMs should be similarly regulated. But because RVMs are not ostensibly 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.