Despite Jay Edelson’s pronouncement last week that there is no new ground to till in TCPAland, a court issued yet another first-in-the-nation ruling and it could have a big impact on users of so-called “direct drop” voicemail providers.
Setting the stage here – the Telephone Consumer Protection Act (“TCPA”) prevents calls to cellular telephone numbers made without the express consent of the called party where such calls are made using automated technology. Although the act uses the word “call” it does not mention voicemails. Accordingly some industrious vendors have invented technology allowing companies to directly deposit a voicemail message intended for a customer or telemarketing target directly with a third-party voicemail provider so as to avoid the whole TCPA “consent” hurdle altogether.
This was always a dangerous prospect. The TCPA has been consistently interpreted broadly by courts to include, inter alia, text messages and e-mails sent to wireless carrier portals that are converted to SMS messages for delivery to a handset. That a court might also consider a voicemail left with a wireless carrier’s third-party voicemail provider–that results in a message alert being sent to a customer’s handset and the ensuing need for the customer to retrieve the voicemail–always seemed rather obvious. Nonetheless these “direct drop” providers have gained momentum (and customers) and claim to have left millions of voicemails without incident (i.e. lawsuits).
Well all of that changed on Monday. In Karen Saunders v. Dyck O’Neal, Inc. Case No. 1:17-cv-335, 2018 WL 3453967 (W.D. Mich. July 16, 2018) the Defendant–a user of VoApp’s popular DirectDrop voicemail product–moved for summary judgment arguing that the TCPA does not cover voicemails. It did not go well.
At the outset of its analysis the Court, correctly, notes that “this is a case of first impression.” But it very quickly embraced the warmth and comfort of settled law– “Courts have consistently held that voicemail messages are subject to the same TCPA restrictions as traditional calls.” Saunders at p. *3. The rest of the opinion writes itself.
Unfortunately for VoApp, the Saunders court includes itself in the “must-expand-TCPA-to-protect-consumers camp.” It writes:
“As a remedial statute, the Court construes the TCPA broadly in favor of Saunders. 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. The TCPA was enacted in 1991; the equivalent act at that time could be considered a party recording a message directly on an answering machine’s cassette tape without ever calling the number—an infeasible technological feat absent physical access to a consumer’s answering machine.”
Saunders at *3
So as technology advances, the TCPA must get bigger in the Saunders court’s view. While that viewpoint is debatable, Saunders is very much not alone in that camp and callers that leverage emerging technologies promising to provide customer contact outside of TCPA controls really should take notice. This is especially true where the result of the contact is the same as the receipt of a phone call. As Saunders explains it:
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. The effect on Saunders is also the same in receiving a text message—which would fall under the TCPA—each time, she received a notification on her phone that she had a new message, and had to take steps to review or delete the message. In fact, voicemails are arguably more of a nuisance to consumers than text messages
Saunders at *4.
It should really come as no surprise, then, that courts are willing to look at the practical effect of such technology on a consumer. While some courts will–properly–read the statute according to its plain language, we’ve already seen an expansionist bend to TCPA-related case law. From that perspective, Saunders is just another brick in the wall. But for users and makers of direct-dropped voicemail services, Saunders is the TCPA reckoning they’d been hoping to avoid.
Notably, “direct drop” voicemail products of this kind were recently the subject of a petition submitted by a company called All About the Message, LLC to the FCC last year. The petition met with deafening silence from industry and intense opposition from consumer advocacy groups. It was unceremoniously withdrawn within a few months and the FCC never ruled upon it.
For now, at least, we all have an answer to the question left pending when the AATM petition was withdrawn. But this is TCPAland, so I’m sure we’ll have a contrary district court result in just a few short weeks.
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