District Court (Fla.) Says Ringless Voicemail Technology Places a “Call” under the TCPA

In Schaevitz v. Braman Hyundai, No. 1:17-cv-23890-KMM, 2019 U.S. Dist. LEXIS 48906 (S.D. Fla. Mar. 25, 2019), Judge Moore found that direct-to-voicemail call technology placed a “call” under the TCPA.  The facts were as follows:

Major Advertising, LLC, on behalf of Defendant, transmitted an unsolicited pre—recorded voicemail message (the “Message”) to Plaintiff’s cellular telephone, which stated as follows: Hi, this is Rey Gordillo, General Sales Manager at Braman Hyundai of Miami. I’m leaving you this quick voicemail to follow—up on an e-mail and a mailer I mailed you earlier this month regarding your current vehicle. It is in very high demand and I strongly believe I can help you trade it in and have you driving away in a newer vehicle for less than what you’re currently paying. If you’re interested call me back, 786-629-9633. Again, this is Rey Gordillo at Braman Hyundai, and the number is 786-629-9633. I look forward to hearing back from you, and have a great day. Id. ¶¶ 43, 52. The purpose of sending the Message was to communicate or try to get into communication with Plaintiff through Plaintiff’s cellular telephone. Id. ¶ 31. Plaintiff did not provide Defendant with Plaintiff’s express consent to be contacted. Id. ¶ 51. The “ringless” voicemail platform used to transmit [*3]  the Message was created by Stratics Networks, Inc. (“Stratics”). Id. ¶¶ 4, 32. The “ringless” voicemail technology used to transmit the Message “establish[es] a direct Internet—based computer—to—computer data connection to the respective voicemails systems of the cellular [carriers]. As part of the protocol for this data communication, subscribers’ cellular telephone numbers are used to identify each voicemail box so that the pre—recorded voice messages are inserted into each voicemail box en masse.” Id. ¶¶ 26, 29 (internal citation omitted). The “ringless” voicemails are transmitted by essentially the same method used to transmit text messages to cellular telephones. Id. ¶ 28. Although Plaintiff does not allege that the telephone rings before the voicemail is deposited into the voicemail box, Plaintiff contends “every cellular telephone audibly alerts a consumer when a voicemail is received” in their voicemail box. See id. at 2 n.3; id. ¶ 27.2

Judge Moore interpreted the TCPA as applying to this technology.

Here, Plaintiff alleges that Defendant employed a program that utilized “ringless” voicemails to “communicate with or to try to get into communication with” Plaintiff and other consumers “through the consumer[s’] cellular telephone[s].” Am. Compl. ¶¶ 3, 31. Plaintiff received the prerecorded “ringless” voicemail in Plaintiff’s voicemail box. Id. ¶ 29. The fact that Defendant utilizes a computer to deposit the prerecorded voice messages en masse into the voicemail boxes of nonconsenting consumers is no bar to finding such “ringless” voicemails qualify as “calls” within the meaning of § 227(b)(1)(A). See In Re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. 7961 (2015) (The FCC recognized that the use of a computer to communicate with a cellular telephone subscriber via a text message is a covered “call” under the TCPA), declaration set aside in part by ACA Int’l v. Fed. Commc’ns Comm’n, 885 F.3d 687 (D.C. Cir. 2018).7 Additionally, the fact that the cellular telephone does not ring as it traditionally would prior to the receipt of a voicemail is not significant in determining whether the act qualifies as a “call” because the TCPA does not require that “the recipient of a call . . . answer the phone or somehow be aware of the call.” See Fillichio, 2010 WL 4261442 at *3. Rather, “it is the mere act of placing the call that triggers the statute.” Id. As a result, “[t]he only thing Plaintiff must plead to establish a violation of the TCPA is that the Defendant[] left voicemail messages at a number assigned to a cellular telephone service using an [ATDS] or an artificial or pre-recorded voice.” Manfred v. Bennett Law, PLLC, No. 12-CV-61548, 2012 WL 6102071, at *2 (S.D. Fla. Dec. 7, 2012). The “ringless” voicemail accompanied by a pre—recorded message is no less intrusive than a standard voicemail or text message—both of which have been held to constitute “calls” under the TCPA. Murphy, 797 F.3d at 1305 (“The prohibition against auto dialed calls applies to text message calls as well as voice calls.”); Legg v. Voice Media Grp., Inc., 20 F. Supp. 3d 1370, 1373 (S.D. Fla. 2014) (“A text message to a cellular telephone qualifies as a ‘call’ within the meaning of the TCPA.”); Satterfield, 569 F.3d at 954 (“[A] voice message or a text message are not distinguishable in terms of being an invasion of privacy.”). A construction of the TCPA in which a “ringless” voicemail [*15]  is a “call” is consistent with Congress’s purpose in enacting the TCPA. “The TCPA was enacted to address certain invasive practices related to ‘unrestricted telemarketing,’ and is designed to protect consumers from receiving unwanted and intrusive telephone calls.” Schweitzer v. Comenity Bank, 866 F.3d 1273, 1276 (11th Cir. 2017). The purpose of the TCPA is to protect consumers from the “nuisance and privacy invasion” associated with unsolicited telemarketing telephone calls and fax advertisements. See Telephone Consumer Protection Act of 1991 Pub. L. No. 102-243, § 2, 105 Stat. 2394 (1991). Congress specifically found that “[b]anning” such conduct “is the only effective means” of protecting consumers “from this nuisance and privacy invasion.” Id. ¶ 12. Accordingly, the Court finds that the “ringless” voicemail, that is, a direct to voicemail message is a “call” under the TCPA.