It’s a question I am asked at every conference I speak at – Is a ringless voicemail subject to the TCPA?
That question was a lot more challenging to answer before last year’s big first-in-the-nation decision in Saunders v. Dyck O’Neal, Inc., 319 F. Supp. 3d 907, 911 (W.D. Mich. 2018)( concluding ringless voicemails are subject to the TCPA at the MSJ phase.)
Since then, TCPAworld has been relatively quiet on the issue. There have been a couple of Article III cases involving ringless voicemails, but nothing else on the ultimate subject of TCPA coverage on such calls.
Well that quiet was shattered on Monday down in the Southern District of Florida. In Schaevitz v. Braman Hyundai, Inc., Case No. 1:17-cv-23890-KMM,2019 U.S. Dist. LEXIS 48906 (S.D. Fl. March 25, 2019) the court held – at the pleadings stage(!) – that a ringless voicemail is, indeed, subject to the TCPA as a matter of law.
It is unclear to me why the Defendant elected to challenge TCPA’s application to ringless voicemails as a pure legal issue at the pleadings stage, but the challenge did not go well. The court had little problem identifying ringless voicemails as similar to regular voicemail messages, the pre-recorded variety of which have always been found subject to the TCPA. The court also noted that the nuisance attendant retrieving a ringless voicemail is no different from receipt of an unwanted text message or “regular” phone call, as the recipient must stop what they are doing and review their phones to determine the message content. For these reasons – and with a nod to Saunders – the court concluded rather easily that ringless voicemails are subject to the TCPA. No good..
To make matters worse, the court also swiftly reviewed and rejected the Defendant’s Article III standing challenge, concluding that receipt of an unwanted ringless voicemail does, in fact, cause a concrete harm subject to review. And the cherry on top– the Court rejected the Defendant’s First Amendment challenge finding that the TCPA survived whatever level of scrutiny is applied to it. (This last piece is an unsurprising result as no district court has yet had the courage to strike down the TCPA, even applying strict scrutiny–but that’s just what the Ninth Circuit may do in Gallion.)
For those of you using ringless voicemail, all is not lost–even if the window to defend this technology is certainly closing. I have often remarked that the best path to defending ringless voicemails lies in the statutory language restricting calls delivered to a number assigned to a wireless carrier. Ringless voicemails are typically delivered vis landlines assigned to third-party voicemail providers – not via wireless numbers. For the second time now, however, that argument does not appear to have been raised by a Defendant trying to extract ringless voicemails for TCPA coverage. So we’ll have to wait for the next one to see whether this argument will be tested. Until then, good luck out there TCPAWorld.
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