District Court (Az.) Says Ringless Voicemail Is Subject to TCPA

In Snyder v. Landcar Mgmt. LTD, No. CV-22-00705-PHX-DLR, 2023 U.S. Dist. LEXIS 49695, at *5-7 (D. Ariz. Mar. 23, 2023), Judge Rayes found that Ringless Voicemail Messages were “calls” under the TCPA.

The Ninth Circuit defines a call under the TCPA as “to communicate with or try to get into communication with a person by telephone.” Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2009). Satterfield reached this conclusion by reviewing In Re Rules & Reguls. Implementing the Tel. Consumer Prot. Act of 1991, 18 F.C.C. Rcd. 14014 (2003) (hereinafter “2003 Report & Order”) and adopting the Federal Communications Commission’s (“FCC”) definition. Id. at 955. That same FCC order also addresses pre- recorded calls that are delivered to answering machines: Congress found that “residential telephone subscribers consider automated or prerecorded telephone calls . . . to be a nuisance and an invasion of privacy.” It also found that “[b]anning such automated or prerecorded telephone calls to the home, except when the receiving party consents to receiving the call or when such calls are necessary in an emergency situation affecting the health and safety of the consumer, is the only effective means of protecting telephone consumers from this nuisance and privacy invasion.” Congress determined that such prerecorded messages cause greater harm to consumers privacy than telephone solicitations by live telemarketers. The record reveals that consumers feel powerless to stop prerecorded messages largely because they are often delivered to answering machines and because they do not always provide a means to request placement on a do-not-call list. 2003 Report & Order, 18 F.C.C. Rcd. at 14097 (footnotes omitted) (emphasis added). The Ninth Circuit recognizes not only traditional phone calls as “calls” under the TCPA but also text messages. Van Patten, 847 F.3d at 1043 (“Unsolicited telemarketing phone calls or text messages, by their nature, invade the privacy and disturb the solitude of their recipients”).  Defendant’s RVM argument adds a wrinkle not contemplated by the 2003 Report & Order: a RVM can cause a pre-recorded messages to end up on answering machines without first ringing the telephone associated with that answering machine. But whether a phone rings or not, a RMV enables a telemarketer to “get in touch” with a consumer via telephone by communicating a message to the consumer’s voicemail for the consumer to hear. And it’s not clear why leaving a voicemail using “ringless” technology would be any less of a nuisance or invasion of privacy or ameliorate the “powerless[ness]” consumers feel when they confront an answering machine with unsolicited, prerecorded telemarketing calls. The Court concludes that RVMs fall within the scope of the TCPA’s definition of a call: “to communicate or try to get into communication with a person by telephone.” Satterfield, 569 F.3d 954; see Caplan v. Budget Van Lines, Inc., No. 220CV130JCMVCF, 2020 WL 4430966, at *4 (D. Nev. July 31, 2020). Thus, even crediting Defendant’s argument that Plaintiff would have only ever received RVMs from Defendant, receipt of RVMs are calls under the TCPA, which establishes injury in fact. Plaintiff has standing.