Over the past several years, callers have increasingly used a technology known as “ringless voicemail” or “direct-to-voicemail drops” to contact consumers. The technology allows companies to deposit recorded messages directly into a consumer’s voicemail (on the carrier’s server) without causing the consumer’s phone to ring. The consumer receives only an indicator that a voicemail is ready to be retrieved. Several companies provide ringless voicemail services and market them as a cheap and efficient way to supplement businesses’ outreach efforts.
Proponents of ringless voicemail services argue that they are outside the scope of the TCPA because: (1) the messages are not delivered to consumers’ cell phones; (2) the message waiting indicator is not a call or text message; and (3) voicemail is an “enhanced information service,” which is not regulated by the FCC.
Until recently, no court had expressly addressed whether ringless voicemail messages are within the purview of the TCPA. In a case of first impression (Saunders v. Dyck O’Neal), the Western District of Michigan rejected the arguments outlined above and held that the messages are prerecorded “calls” governed by the TCPA. According to the court, the TCPA is a remedial statute that “naturally evolves in parallel with telecommunications technology as it evolves.” The court cited text messages and email-to-text messages—both interpreted as “calls” under the TCPA—as examples of new technologies governed by the TCPA. It also relied heavily on public policy considerations to ensure its interpretation did not “elevate form over substance” and “thwart Congressional intent” by opening a floodgate of unwanted voicemail messages to consumers.
Saunders represents only the first court opinion on ringless voicemail messages but it demonstrates the risks associated with using the technology to contact consumers without the requisite level of consent.
Nick Whisler is a partner at Mac Murray & Shuster LLP, where he brings more than a decade of experience helping clients in highly regulated industries comply with federal and state debt collection, telemarketing, privacy, and other consumer protection laws. Nick brings a particular depth of experience related to TCPA compliance and has written and presented extensively on its complex set of regulations and interpretations. He serves as Associate General Counsel to the Professional Association for Customer Engagement (PACE).