Advertising Law Blog

In Saunders v. Dyck-O’Neal, Inc. (decided on July 16, 2018 in the Western District of Michigan), a federal court ruled for the first time that direct drop voicemails, also known as ringless voicemails, are covered by the Telephone Consumer Protection Act (TCPA).  Although the ruling went no further than saying the plaintiff could proceed with her TCPA claim, if this decision is followed by other courts, it means that direct drop voicemails will be subject to the same prior express consent requirement as autodialed calls, pre-recorded calls and automated text messages.

For those unfamiliar with the technology, direct drop voicemail is a service that can leave a voice mail message on a person’s cell phone through a “back door”—meaning the message goes directly to a server and then onto a person’s phone without the phone ever ringing. Technically, no call is made directly to a cell phone, because the contact is limited to the server that communicates with the cell phone.  However, the parties to this lawsuit disputed whether this technology was a “call” that fell under the TCPA’s regulation.

Calling it a case of first impression, the court decided that direct-to-voicemail messages do qualify as “calls” under the TCPA. The key portion of the court’s ruling is as follows: the defendant’s “use of direct to voicemail technology is a ‘call’ and falls within the purview of the TCPA. As a remedial statute, the Court construes the TCPA broadly in favor of [the plaintiff]. 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 […] Voicemails are intrinsically tied to cellular phones. By leaving a voicemail directly in the server space associated with [the plaintiff’s] phone, [the defendant] was attempting to communicate […] via her phone—which is the definition applied to the TCPA’s use of ‘call.’”

The defendant’s motion to end the lawsuit through a summary judgment motion was denied.

Takeaway: Since this is the only known federal court ruling considering the use of direct drop or ringless voicemails, unless future rulings come to the opposite conclusion, companies should assume that employing this technology without the prior express consent of the voice mail recipient will subject them to potential TCPA liability.