The Southern District of Florida has added to a series of recent district court decisions concluding that a “ringless voicemail” constitutes a “call” for purposes of the Telephone Consumer Protection Act (“TCPA”).
The TCPA makes it unlawful, in relevant part, “to make any call” using an automatic telephone dialing system or prerecorded voice to a “cellular telephone service.” Braman Hyundai, Inc. (“Hyundai”) moved to dismiss the putative TCPA class action targeting its use of ringless voicemails, arguing, in part, that they do not constitute “calls” within the purview of the TCPA.
Braman argued that the ringless voicemail software at issue connected directly to the telephone company’s voicemail server to directly deposit messages into the recipient mailbox without “ringing” the recipient’s telephone—bypassing any contact with the telephone subscriber. The court, adopting the reasoning of the Western District of Michigan in Saunders v. Dyck O’Neal, Inc., 319 F. Supp. 3d 907 (W.D. Mich. 2018), concluded that ringless voicemails constitute calls for TCPA purposes.
The court started with the dictionary definition of a call: “to communicate with or try to get into communication with a person by a telephone.” It noted that courts have held both prerecorded voicemail messages and text messages to be calls for TCPA purposes, which both fall within the common understanding of a call but are not specified in the TCPA’s provisions. The court also emphasized that, like prerecorded voicemail messages and text messages, ringless voicemails present the same nuisance that the TCPA was intended to prevent: the “nuisance and privacy invasion” associated with unsolicited telemarketing. The decision represents another installment in a burgeoning line of district court decisions to hold that ringless voicemail technology is subject to the TCPA.
The decision is Schaevitz v. Braman Hyundai, Inc., No. 1:17-cv-23890 (S.D. Fla. Mar. 25, 2019), Dkt. No. 62.