You’ll recall a few weeks back featured analysis of efforts by VoApps—makers of the DirectDrop ringless voicemail platform—to stem the tide of negative TCPA rulings addressing ringless voicemail technologies. VoApps founder David King even joined the Unprecedented podcast to discuss his submission of a lengthy declaration to the court addressing how the technology works and why it is not covered by the TCPA.

Well, a few days ago the Court issued its ruling on the pending motion—a summary judgment effort by the Plaintiff—and I must say, it was rather anti-climactic. Indeed, the court punted on the key issue entirely.

In Saunders v. Dyck O’Neal, Case No. 1:17-CV-335, 2019 U.S. Dist. LEXIS 177606 (W.D. Mich. Oct. 4, 2019) the court issued its highly-anticipated ruling on the Plaintiff’s bid to earn judgment following the Court’s earlier ruling that a ringless voicemail is a call under the TCPA. It was in response to this motion that VoApps submitted a mountain of evidence that although a ringless voicemail may be a “call” it is not a call to a number assigned to a cellular service—and so such calls are not actionable under the TCPA’s infamous section 227(b).

Rather than answer the question directly the Court made mincemeat of the Federal Rules of Civil Procedure and treated the summary judgment motion as if it were some sort of motion to confirm the Court’s earlier ruling. This is weird because i) no it wasn’t; and ii) there’s no such thing. As the Court put it: “Admittedly, Saunders moved for summary judgment, but her motion is in fact limited to a request for clarification of the impact of the Court’s prior ruling: Was the Court’s prior ruling that DONI’s messaging technology falls within the purview of the TCPA a ruling as a matter of law that binds the parties going forward? The answer is clearly yes.”

Great. So we now know what we already all knew—the Saunders court holds that a ringless voicemail is a call. Got it. As to the key issue of whether the calls were made to a landline to a cell phone, however, the Court finds: “These issues were unnecessary to Saunders’s motion, as she has not [actually] moved for summary judgment on her claim.”

So there you go. Plaintiff’s motion for summary judgment was not actually a motion for summary judgment after all. So all that work by VoApps was for nothing. But not really. Obviously this fight is not yet over. The Court declined to enter judgment in favor of the Plaintiff meaning that further work—and perhaps a trial—lies ahead for the good folks over at VoApps. We’ll keep you posted.


Editor's note: This article is provided through a partnership between insideARM and Squire Patton Boggs LLP, which provides a steady stream of timely, insightful and entertaining takes on of the ever-evolving, never-a-dull-moment Telephone Consumer Protection Act. Squire Patton Boggs LLP—and all insideARM articles—are protected by copyright. All rights are reserved. 

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