Court Rules “Ringless” Voicemails Are a TCPA “Call”legal image

Ringless voicemail technology permits telemarketers to leave a voice message on a cell phone via a server. The telephone never rings. Thus, there has been much debate whether such messages are considered “calls” pursuant to the Telephone Consumer Protection Act.

In Saunders v. Dyck-O’Neal, Inc., a federal court in Michigan broadened the reach of the Telephone Consumer Protection Act when it ruled that “ringless” (a/k/ direct drop) voicemails or considered “calls.” Depending upon how other courts rule and as many telemarketing compliance professionals have long since suspected, ringless voicemails are subject to the same prior express written consent requirement as autodialed and pre-recorded telephone calls.

The decision denying defendant’s motion for summary judgment is a victory for the plaintiffs’ TCPA bar. In reaching its decision, the court referenced a number of prior decisions, noting that “[c]ourts have consistently held that voicemail messages are subject to the same TCPA restrictions as traditional calls.” The court also noted that courts have found text messages to be “calls” under the TCPA, the statutory language and then considered the statutory purpose of the TCPA.

The Court rejected defendant’s argument that it did not dial or call plaintiff’s telephone, in a traditional sense. It ruled that the TCPA regulates “any” call, which includes communications, or an attempt to communicate, via telephone. It opined that by leaving a voicemail directly in the server space associated with plaintiff’s telephone, an attempt was made to communicate with her.

Ultimately and despite there being no charge to consumers upon receipt of ringless voicemail, the court found that the telephone not ringing before the voicemail was left – the ringless voicemail residing in a server for storage – did not change the effect upon plaintiff.

This is the first federal court ruling on the issue. It is anticipated that other courts may disagree with this ruling. Time will tell. For now, telemarketers would be wise to obtain prior express written consent of the recipient and treat ringless voicemails the same as traditional telephone calls for TCPA liability purposes.

Richard B. Newman is an FTC defense lawyer at Hinch Newman LLP focusing on advertising and digital media matters.

Informational purposes only. Not legal advice. Always seek the advice of an attorney. Previous case results do not guarantee similar future result. Hinch Newman LLP | 40 Wall St., 35th Floor, New York, NY 10005 | (212) 756-8777.

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