Direct drop voicemails – voicemails that hit your phone without it even ringing – are a hot topic these days. They were one of the main subjects of consumer complaints to the FCC in response to the May Public Notice seeking comment on the interpretation and implementation of the Telephone Consumer Protection Act (“TCPA”) on remand from the D.C. Circuit’s March ruling in ACA Int’l. Is a direct drop voicemail a “call” under the TCPA, as compared to a text message, which we know does constitute a call? While the FCC has yet to weigh in, in the first judicial opinion on the subject, a federal court in the Western District of Michigan found they were in Saunders v. Dyck O’Neal, 17-cv-335, 2018 U.S. Dist. LEXIS 121076 (W.D. Mich. July 16, 2018).
In Saunders, Plaintiff alleged that Defendant Dyck O’Neal violated the TCPA by sending her several prerecorded “direct drop” voicemails using a third-party vendor called VoApp regarding a purported mortgage deficiency that was owed by her ex-husband. Plaintiff alleged that Defendant left her over thirty such voicemail messages.
By way of background, the technology behind the VoApp application works as follows: instead of directly targeting a user’s cell phone number, the application’s “Adaptive Signaling” technology causes the message to be sent directly to the voicemail service provider’s enhanced service platform (that is, to the voicemail server space assigned to the user’s cell phone number). Voicemail messages are not stored on a user’s physical cellphone, but rather typically on server space managed by the cellphone carrier. Thus, the VoApp technology is able to deliver a voicemail to a cellphone user without ever causing the user’s phone to ring. Once the message is transmitted to the server space assigned to the cellphone user, the user receives a notification that he/she has received a new voicemail message.
Defendant Dyck O’Neal moved for summary judgment, arguing that the “direct drop” voicemails were not “calls” under the TCPA. It based this argument on, among other things, the contention that: 1) it did not dial Plaintiff’s cellphone number, but rather merely “deposited” the voicemail directly on a voicemail server without placing a call to Plaintiff’s physical mobile handset; 2) voicemail is “an information or enhanced service”, as opposed to a “telecommunications service”, and therefore is not regulated under the TCPA. See Id. at *4.
The Court disagreed, taking a common sense approach that the “effect on Saunders is the same whether her phone rang with a call before the voicemail is left, or whether the voicemail is left directly in her voicemail box, i.e., Saunders receives a notification on her phone that she has a new voicemail.” See Id. at *9. Based on this logic, the Court held that that “Dyck O’Neal’s use of direct to voicemail technology is a ‘call’ and falls within the purview of the TCPA” and went on to opine that “as a remedial statute, the Court construes the TCPA broadly in favor of [plaintiff]. See Id. at *8. The statute itself casts a broad net—it regulates any call, and a ‘call’ includes communication, or an attempt to communicate, via telephone. Both the FCC and the courts have recognized that the scope of the TCPA naturally evolves in parallel with telecommunications technology as it evolves, e.g., with the advent of text messages and email-to-text messages or, as we have here, new technology to get into a consumer’s voicemail box directly.” Id.
The Court based its opinion on policy arguments, and found that “[t]o hold otherwise ‘would elevate form over substance, thwart Congressional intent that evolving technologies not deprive mobile consumers of the TCPA’s protections, and potentially open a floodgate of unwanted [voicemail] messages to wireless consumers.’” See Id. at *7.
It is worth noting that the issue of “direct drop” voicemails has previously been raised before the FCC. VoApp itself had submitted a petition to the FCC in July 2014 seeking a declaratory ruling that such communications are not calls within the meaning of the TCPA (accessible here), but the Commission never ruled on the issue. In March 2017, a company called “All About the Message” submitted a similar petition (accessible here), which it subsequently withdrew in June of that year in the face of widespread criticism from consumer advocacy groups and certain members of Congress.
So callers beware, as the technology landscape broadens and new technologies develop, at least one Court reprimands that defendants “cannot skirt the statute.” In the meantime, we still await the FCC’s take on the subject in the ever-developing post-ACA Int’l world.
