Technology can be wonderful. It isn’t much fun, however, when technology is misused to deliver constant telemarketing calls. The newest battles between consumers and telemarketers involves “ringless voicemail.” And those voicemails are probably actionable.
Almost 30 years ago, Congress passed the Telephone Consumer Protection Act, TCPA for short. Americans were growing weary of constant calls and almost always received at an inopportune moment. The TCPA law was passed in 1991 and 28 years later, the problems of unwanted telemarketing calls is worse than ever.
Telemarketers have learned to spoof numbers to defeat call blocking and trick people into answering. The technology is especially dangerous when used by identity thieves hoping to impersonate the IRS or the call recipient’s bank.
Equally difficult to prosecute are the offshore call centers that operate with impunity. You may be able to sue but collecting your winnings could be a problem.
Spoofing, defeating caller ID and offshore fly-by-night call centers? Could it get worse? It has. The newest used by shady telemarketers? Ringless voicemail.
Is Ringless Voicemail Legal?
To answer the questions about the legality of ringless voicemails, some understanding of the term and technology Is necessary.
When you or I leave a voicemail, we do so by calling a number and if no answer, leaving a voicemail at the prompt. When a ringless voicemail is left, the recipient’s phone never rings. They don’t even see a missed call. Instead their phone simply says there is a waiting voicemail.
Ringless voicemail uses technology to reach the target’s voicemail through a back door. Specifically, adaptive signaling technology causes the mobile switch to make a call to a phone number assigned to the voicemail service provider’s enhanced service platform (i.e. the voicemail computer or server), not the consumer’s phone number.
By routing the message through the voicemail server itself, this technology is able to deliver a voicemail message to the server space associated with the consumer —the consumer then
receives a notification that she received a new voicemail message, but without having received a traditional call. In other words, the consumer’s phone never rings.
To leave a ringless voicemail, the caller typically does three things. First, the caller must input the recipients’ phone numbers. Next the caller must identify the caller ID number to
be displayed on the target’s voicemail screen. (And remember, those numbers can easily be spoofed.) Finally, the caller must load the prerecorded message to record into the target’s voicemail box.
From there, the system can deliver tens of thousands of ringless voicemails and at any interval that the caller chooses. Talk about harassment!
Suddenly hundreds of consumers see a voicemail message displayed on their phone. They
then take steps to listen to the voicemail and delete it.
Are ringless voicemails legal?
No! Not unless you signed up for them or gave consent for telemarketing calls. (If you did, the company making the calls must offer an easy way for you to opt out and stope the calls.)
When the Telephone Consumer Protection Act was passed, predictive dialers were in their infancy. We didn’t yet have text messaging. Spoofing phone numbers wasn’t even on anyone’s radar, nor was ringless voicemails.
Despite the many increases in technology since 1991, the law hasn’t kept up. Quite frankly, if the law was rewritten today, telemarketers would roll out some new gimmick tomorrow. Thankfully, a federal judge in Michigan had the common sense to say “no” to ringless voicemail technology.
Telephone Consumer Protection Act & Ringless Voicemail
The law in relevant part prohibits any person within the United States from “mak[ing] any call … using any automatic telephone dialing system or an artificial or prerecorded voice … to any telephone number assigned to a paging service, cellular telephone service … or any service for which the called party is charged for the call.”
The telemarketers and collection agencies say that ringless voicemails aren’t calls under the law. 47 U.S.C. § 227(b)(1) (A)(iii). Because the law is considered “remedial”, courts have universally ruled that the law should be construed in favor of consumers. [Judges get robocalls too… no one likes them.]
There is a long line of decisions saying that voicemails are considered calls under the TCPA. The caller in the Michigan case, however, claimed that no one ever dialed the consumer’s phone number. There have been no cases, until this one, determining whether the law included direct-to-voicemail, or direct drop voicemails.
In July 2018, U.S. District Court Judge Gordon J. Quist ruled in favor of consumers.
In doing so, he analyzed the “to make any call” language in the TCPA, and looked to the ordinary and common meaning of the verb “to call.” He found the word call means to communicate with or try to get into communication with a person by a telephone.
Finally, common sense prevails.
Still, the caller – in this case a collection agency – insisted it never called because it didn’t dial the consumer’s phone number. The company says it “deposit[ed] a voicemail message directly on a voicemail service”—an action they claim is unregulated.
As noted above, Judge Quist didn’t buy their tortured reading of the law.
What Does the FCC Say about Ringless Voicemail?
The caller in the case above was a collection agency. We do agree that ringless voicemail technology where a company can direct drop voice messages is largely unregulated. In recent years, the FCC appears to have a more pro telemarketer stance which is bad for consumers.
As this post is being written, the FCC is rewriting its robocalling rules. Will a new rule allow ringless voicemails? No one knows.
Even if a new regulation permits these direct drop voicemails, it is still up to the courts to decide if the regulation is within the law.
For now, if you receive a ringless voicemail, it is probably illegal. Under the law, you can receive between $500 and $1500 per call from the callers dropping these voicemails. Plus, the company may also be responsible for attorney’s fees.
All inquiries are confidential and without obligation. We accept cases throughout the United States.
Our team of robocall lawyers have taken nuisance call cases against big mortgage companies, home warranty companies and others.
Future of Robocalling Law
A recent court case makes Telephone Consumer Protection Act cases much more difficult. Many law firms will no longer accept these cases because of the uncertainties of the definition of autodialers and how the FCC is likely to address industry concerns. Some lawyers even worry that the FCC may pass a retroactive regulation permitting these calls!
We can’t worry what the FCC or courts might do. Calls involving prerecorded voices, ringless voicemails and calling folks on the do not call list are still illegal and we don’t think Congress will change that. Unfortunately, the worst offenders – those using offshore call centers and spoofing technology – are tough for us to address. Those folks need to go jail if they won’t pay fines or lawsuit damages.
Before you call us, note the number where the calls are coming from, verify it is a real number, determine who is making the call and note whether you the call involved a ringless voicemail or prerecorded voice.
We have attached a copy of the court’s order for those readers who like to see exactly what the court said and don’t have an account to obtain court records online. Our comments are denoted with an asterisk.
OPINION AND ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
GORDON J. QUIST, UNITED STATES DISTRICT
On April 12, 2017, Plaintiff, Karen Saunders, filed an action under the Telephone Consumer Protection Act (TCPA) against Defendant, Dyck O’Neal, Inc.
The facts arise out of Dyck O’Neal’s efforts to collect a mortgage deficiency that Saunders alleges her ex-husband owes.
*[Dyck O’Neal, Inc. is a collection agency.]
From 2015 through 2017, Dyck O’Neal called repeatedly and left a number of voicemails on Saunders’ phone. Dyck O’Neal used a vendor called VoApp to leave prerecorded “direct drop” voicemails. From April 2016 to April 2017, Dyck O’Neal left approximately thirty of these voicemail messages on Saunders’ phone. Saunders alleges that these, voicemails are a violation of the TCPA. Dyck O’Neal filed a motion for summary judgment, arguing that the voicemails are not a violation. (ECF No. 35.) The matter is fully briefed. For the reasons that follow, the Court will deny Dyck O’Neal’s motion.
*[Ringless voicemails are also known as direct drop voicemails.]
Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Material facts are facts which are defined by substantive law and are necessary to apply the law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986). A dispute is genuine if a reasonable jury could return judgment for the non-moving party. Id.
The TCPA prohibits any person within the United States from “mak[ing] any call … using any automatic telephone dialing system or an artificial or prerecorded voice … to any telephone number assigned to a paging service, cellular telephone service … or any service for which the
called party is charged for the call.” 47 U.S.C. § 227(b)(1) (A)(iii). “Voluminous consumer complaints about abuses of telephone technology … prompted Congress to pass the TCPA.
Congress determined that federal legislation was needed because telemarketers, by operating interstate, were escaping state-law prohibitions on intrusive nuisance calls. The Act bans certain practices invasive of privacy.” Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 370–71, 132
- Ct. 740, 744 (2012). “The TCPA is a remedial statute that was passed to protect consumers from unwanted automated telephone calls … [therefore,] it should be construed to benefit consumers.” Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 271 (3d Cir. 2013) (internal citations
omitted); see also Inge v. Rock Fin. Corp., 281 F.3d 613, 621 (6th Cir. 2002) (“As a remedial statute, we must construe [the Truth in Lending Act’s] terms liberally in favor of consumers.” (emphasis added) ).
Federal Home Loan Mortgage Corporation assigned Dyck O’Neal all of its right, title, and interest to outstanding debt that Saunders and her then-husband owed on a piece of property. Dyck O’Neal then began to contact Saunders in an attempt to collect the debt. In addition to calls, Dyck O’Neal left approximately thirty automated voicemail messages on Saunders’ phone over a one-year period—each time, Saunders would receive a notification on her phone that she had a new voicemail.
Dyck O’Neal contracts with VoApp, a third-party vendor, to deliver messages to individuals’ voicemails using VoApp’s “DirectDROP” voicemail service. Rather than call the target’s phone number and wait to reach the target’s voicemail, VoApp utilizes technology to reach the target’s voicemail through a back door. Specifically, VoApp’s Adaptive Signaling technology “causes the mobile switch to make a call to a phone number assigned to the voicemail service provider’s enhanced service platform (i.e. the voicemail computer or server), not the consumer’s phone number.” By routing the message through the voicemail server itself, VoApp is able to deliver a voicemail message to the server space associated with the consumer —the consumer then receives a notification that she received a new voicemail
message, but without having received a traditional call.
Dyck O’Neal provides three things to VoApp in order for VoApp to make its direct drop voicemail messages: (1) the target’s phone numbers; (2) the caller ID number to be displayed on the target’s voicemail screen; and (3) the prerecorded message to record into the target’s voicemail box. VoApp then makes the respective “calls” on a repeated basis, and targeted consumers begin to receive notifications that they have a new voicemail message each
time VoApp does so. The target must then take steps to listen to the voicemail and delete it.
This is a case of first impression. The parties dispute whether Dyck O’Neal’s direct-to-voicemail messages—by VoApp—qualify as a “call” under § 227(b)(1)(A)(iii) of the TCPA. If the messages are a “call,” then Dyck O’Neal’s motion must be denied as a matter of law—and vice versa.
*[A case of first impression means no other court has addressed this same legal issue. There was a case in Florida involving ringless voicemails but it settled before the court rendered a decision.]
Courts have consistently held that voicemail messages are subject to the same TCPA restrictions as traditional calls. See, e.g., Soppet v. Enhanced Recovery Co., 67 F.3d 637 (7th Cir. 2012) (awarding statutory damages for all calls received, including voicemails); Powell v. West Asset Mgmt. Inc., 773 F. Supp. 2d 761 (N.D. Ill. 2011) (concluding that unanswered calls and accompanying voicemail messages were violations of the TCPA); Castro Green Tree Servicing LLC, 959 F. Supp. 2d 698, 720 (S.D.N.Y. 2013) (holding that it was immaterial whether the plaintiff answered the defendants’ calls or whether the calls went to voicemail). The same can be said for text messages—the Supreme Court observed that “[a] text message to a cellular telephone, it is undisputed, qualifies as a ‘call’ within the compass of § 227(b)(1)
(A)(iii).” Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 667 (2016). Neither party has offered, and the Court is unaware of, a case in which a court addressed whether direct-to-voicemail, or direct drop voicemails, are within the compass of § 227(b)(1)(A)(iii).
The Ninth Circuit considered whether a “call” includes both voice and text messages, provided that the call is made “to any telephone number,” as required by the statute, in Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009). The court analyzed the “to make any call” language, and looked to the “ordinary, contemporary, and common meaning of the verb ‘to call.’” The court found that “call” in this context meant “to communicate with or try to get into communication with a person by a telephone,” and noted that text messaging was not available when the law was enacted in 1991. Id. at 953–54. Citing the statutory purpose of the TCPA, i.e., to protect the privacy interests of individuals from the nuisance and invasion of privacy by automated telephone calls, the court held “that a voice message or a text message are not distinguishable in terms of being an invasion of privacy.” Id. at 954; see also Keating v. Peterson’s Nelnet, LLC, 615 F. App’x 365, 370 (6th Cir. 2015) (“It is clear that Congress did not address, or even intend to address, the treatment of text messages when considering and passing the TCPA …. We thus unhesitatingly afford deference to the [FCC] holding that a text message should be treated as a ‘call’ for purposes of the TCPA.” (emphasis added)).
Saunders also points out Congress’ use of the broad descriptor “any” in regulating “any call.” In Pinchem v. Regal Medical Group, Inc., 228 F. Supp. 3d 992, 997 (C.D. Cal. 2017), the court cited the dictionary definition of “any” as “unmeasured or unlimited in amount, number, or extent; appreciably large or extended.” The court accordingly concluded that a fax transmission to a phone, containing data rather than spoken word, is nevertheless “intended to express a message to the recipient through a telephone line,” and is a “call” under the TCPA. Id.
The FCC similarly construed the TCPA broadly in determining that sending a text message to a consumer by email or web browser fell under the purview of the TCPA. The FCC stated, “[t]he TCPA’s text and legislative history reveal Congress’s intent to give the Commission broad authority to enforce the protections from unwanted robocalls as new technologies emerge. We therefore believe Congress intended the word ‘dial’ 5 to mean initiating a communication with consumers through use of their telephone number by an automated means that does not
require direct human intervention.” FCC 2015 Ruling, 30 F.C.C. Rcd. 7961, at ¶¶ 113–15 (2015) (emphasis added), decision set aside in part by ACA Int’l v. FCC, 885 F.3d 687 (D.C. Cir. 2018). The FCC concluded, “[f]inding otherwise—that merely adding a domain to the telephone
number means the number has not been ‘dialed’—when the effect on the recipient is identical, would elevate form over substance, thwart Congressional intent that evolving technologies not deprive mobile consumers of the TCPA’s protections, and potentially open a floodgate of unwanted text messages to wireless consumers.” Id. at ¶ 115.
Dyck O’Neal emphasizes that it did not dial Saunders’ cellular telephone number. Instead, Dyck O’Neal “deposit[ed] a voicemail message directly on a voicemail service”—an action it insists is unregulated. “To do this, VoApp’s patented Adapt-Sig technology created and transmitted a series of network signaling events into the network. Once a connection was established, the voice message was then played into the voice mail box from VoApp’s server without ever placing a call to Plaintiff’s mobile handset.” (ECF No. 48 at PageID.492.)
Dyck O’Neal’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 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 received the notifications of Dyck O’Neal’s voicemails on her phone. She listened to the voicemails on her phone. Voicemails are intrinsically tied to cellular phones. By leaving a voicemail directly in the server space associated with Saunders’ phone, Dyck O’Neal was attempting to communicate with Saunders via her phone—which is the definition applied to the TCPA’s use of “call.” Further, Dyck O’Neal’s automated message instructed Saunders to call them at a specific phone number—inviting additional communication over the telephone.
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. To limit the TCPA to instances where Dyck O’Neal specifically dialed Saunders’ phone number and then reached her voicemail, and exclude Dyck O’Neal’s back door into Saunders’ voicemail box, would be an absurd result. The TCPA was created to limit the harassment and nuisance that automated calls and messages place on consumers—which is precisely what Saunders alleges Dyck O’Neal has done. Dyck O’Neal cannot skirt the statute with VoApp’s new technology.
Accordingly, Dyck O’Neal’s direct-to-voicemail messages are a “call” under the TCPA, and Saunders’ claim will proceed. To hold otherwise “would elevate form over substance, thwart Congressional intent that evolving technologies not deprive mobile consumers of the TCPA’s
protections, and potentially open a floodgate of unwanted [voicemail] messages to wireless consumers.” 30 F.C.C. Rcd. 7961 at ¶ 115.
IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment is DENIED.
*[By denying the collection agency’s motion for summary judgment, the court said it wasn’t ruling in the collection agency’s favor and that the consumer’s lawsuit could proceed to trial.]
Remember, if you are receiving unwanted phone calls or texts or receiving ringless voicemails, you may have a case. To learn more, visit our telemarketing harassment information page. Ready to see if you have a claim? Contact us online by email or by phone 202-800-9791.