District court interprets TCPA to cover direct-to-voicemail messages
No Matter Who Calls …
By now, we know you’re familiar with the Telephone Consumer Protection Act (TCPA) and how one of its goals is to curb nuisance calls to cellphones.
Since its inception, the TCPA has been interpreted to address more and more forms of telephonic communication, including text messages (and other communications delivered as SMS messages). Figuring out a way around the act isn’t easy, but nonetheless, some clever users are giving it a shot using technologies that place voice messages directly in consumers’ voicemail boxes.
One such consumer, Michigan native Karen Saunders, received a number of voicemails during a period of four years, including a time between June 2016 and April 2017, which she alleged were “recorded ahead of time, and then … played when the dialing system detected that the call was answered by plaintiff’s voice mail.” Saunders’ proposed class action complaint alleges that her number was one of many on a list that the defendant’s equipment automatically and sequentially called. Claiming that she never consented to the calls or provided the caller (a debt collector, no less) with her phone number, she filed suit in the Western District of Michigan in 2017, alleging violations of the TCPA. Among other requests for relief, Saunders asked that the defendant be enjoined from using third parties to store and record prerecorded messages without first obtaining consent from call recipients.
But would the direct voicemails be considered actionable under the TCPA?
No, said the defendant, who filed for summary judgment in April 2018, claiming that “the delivery of a voice message directly to a voicemail box does not constitute a ‘call’ subject to the prohibitions set forth” by the TCPA. To be actionable, according to the defendant, the calls would have needed to be placed “using an automated telephone dialing system (or ATDS) or an artificial pre-recorded voice.”
A word about the underlying technology at issue in this case: The bill collector contracted with a third-party vendor called VoApps, whose voicemail messaging product DirectDrop was able to skip the consumer’s actual phone number and call the number assigned to the computer system that managed the voicemail service. Because it was directly calling the voicemail service, the defendant argued, the call was not covered by the TCPA.
In a case of first impression, the court found in favor of Saunders and held that the defendant’s use of DirectDrop’s workaround was still a “call” under the act, bringing direct-to-voicemail messages under the TCPA’s umbrella. “A ‘call’ includes communication,” the order read, “or an attempt to communicate, via telephone … [B]oth the FCC and the courts have recognized that the scope of the TCPA naturally evolves in parallel with telecommunications technology as it evolves.”
Accordingly, and in line with the court’s findings, just because direct-to-voicemail messaging is a new iteration in that technology does not mean it escapes the long arm of the law.