A federal district court judge has ruled that ringless voicemails and voicemail drops are in fact “calls” and fall within the purview of the Telephone Consumer Protection Act of 1991 (TCPA) allowing the lawsuit of Saunders v. Dyck O’Neal, 17-cv-335, 2018 U.S. Dist. LEXIS 121076 in the Western District of Michigan to proceed.
The Court’s Opinion
Defendant Dyck O’Neal argued that “direct drop” voicemails are not “calls” under the TCPA. His argument was based on 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 mobile phone; 2) voicemail is “an information or enhanced service”, as opposed to a “telecommunications service”, and therefore is not regulated under the TCPA.
The court disagreed, saying 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.” Based on this interruption, 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”.
What This Means for Marketers
Violations of the TCPA are no small matter. The penalties can be costly, often up to $1,500 per call. The case of Saunders v. Dyck O’Neal is not the first litigation dealing with ringless voicemail, it’s just the first one to go before a federal judge and receive an opinion. The FCC received requests for a ruling on the technology as early as 2014 but to date has not.
Businesses who use the ringless voicemail should tread carefully and fully consider the TCPA liability. At least one court has been clear in saying defendants “cannot skirt the statute.”
You’re Not Too Small to be at Risk
It is common for small businesses to believe these issues don’t effect them and they can continue to violate the TCPA rules because they are too small to show up on the radar of regulators. It is not regulators who act first to bring these cases to court, it is class-action lawyers advocating for consumer rights. Regardless how you feel about the litigious nature of our country, it’s risky to underestimate the opportunistic nature of these consumer advocates.
BellesLink and the TCPA
As a company we work to maintain compliance with all federal and state regulations regarding public records data and telecommunications. As a customer you can feel confident that our products for data, phone, and text are built to be effective and also fully compliant.