In Caplan v. Budget Van Lines, No. 2:20-CV-130 JCM (VCF), 2020 U.S. Dist. LEXIS 136865 (D. Nev. July 31, 2020), Judge Mayan denied a ringless technology defendant’s motion to dismiss a TCPA claim
The second issue is whether RVMs constitute calls under the TCPA. RVM technology allows a message to be placed in a recipient’s voicemail without the recipient’s phone ever ringing. (See ECF No. 14 at 2). The two incident “calls” Caplan claims violated the TCPA were RVMs. See id. at 3. Budget essentially argues that because there is no actual call or communication between the two parties, RVMs are not calls. See id. Caplan argues that leaving a voicemail is still an attempt to communicate, regardless of whether his phone actually rings. (See ECF No. 24). This appears to be an issue of first impression before this court. The TCPA provides as follows: It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States- (A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice- . . . (iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call U.S.C. § 227. Courts in other jurisdictions have ruled that RVMs are calls under the TCPA. See, e.g., Saunders v. Dyck O’Neal, Inc., 319 F. Supp. 3d 907, 911 (W.D. Mich. 2018). While the Ninth Circuit has yet to address RVMs specifically, it has ruled that methods of communication other than traditional phones calls, like text messages, are calls within the scope of the TCPA. See Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 952 (9th Cir. 2009). The Satterfield court reasoned that the TCPA was designed to stop invasions of privacy arising from any attempt to get in contact with the recipient related to their phone number; thus, an unsolicited text message would qualify as a call that the statute sought to prevent. Id. at 954. The Satterfield court construed the TCPA as primarily designed to prevent nuisance and invasion of privacy. Id. In addition, the TCPA is a remedial statute, and “should be construed broadly to effectuate its purposes.” Saunders, 319 F. Supp. 3d at 911. Under that definition, RVMs are also calls under the TCPA. Budget attempts to distinguish RVMs from phone calls, text messages, and traditional voicemails by asserting that RVMs are not delivered over the cell phone carrier’s network, making them more akin to the broader “information services” category of communication not regulated by the TCPA. (See ECF No. 14 at 14). The FCC has previously extended the TCPA’s coverage to include internet-to-phone text messaging, finding that a focus on the means used to initiate the communication “would elevate form over substance, thwart Congressional intent that evolving technologies not deprive mobile customers of the TCPA’s protections, and potentially open a floodgate of unwanted text messages to wireless customer.” In the Matter of Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. 7961, 8019 (2015). This court finds that the TCPA is applicable to RVMs for the same reason. Focusing on the method of delivery, as Budget would have the court do, elevates form over substance. At bottom, RVMs are still a nuisance delivered to the recipient’s phone by means of the phone number. RVMs are calls as defined by the TCPA. The court denies Budget’s motion to dismiss.