Some companies market “ringless voicemail”, i.e. direct-to-voicemail messages without the phone actually ringing, as a way reach consumers without being subject to the Telephone Consumer Protection Act’s (TCPA) restrictions on calls to cell phones. They contend that the messages are not “calls” for the purposes of the TCPA.
But this contention is wrong, and you rely on it at your peril.
Previously, these companies relied on a complex argument briefly summarized as “neither the FCC nor any court have specifically ruled the TCPA applied to ringless voicemail.” That is no longer true.
In Saunders v. Dyck O’Neal, Inc., No. 1:17-CV-335, 2018 U.S. Dist. LEXIS 121076 (W.D. Mich. July 16, 2018), a debt collector left more than 30 ringless voicemail messages on the plaintiff’s cell phone. The debt collector argued these messages were an “information service” under the Federal Communications Commission (FCC) rules and not “calls” regulated by the TCPA.
The judge noted that the messages might be part of an “information service”, but because they connected to the plaintiff’s phone, they were “calls” and subject to the TCPA:
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 … [the debt collector] cannot skirt the statute with … new technology.
Id. at *9-10.
This case is consistent with other courts that have held that voicemail is subject to the same TCPA restrictions as traditional calls. See, e.g., Soppet v. Enhanced Recovery Co., 679 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 v. 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).
Thus, if you plan to use ringless voicemail messages to contact consumers, you must comply with the TCPA’s restrictions on calls to cell phones and cannot rely on zealous advertising to the contrary.