In Beard v. John Wester Chevrolet, LLC, No. 5:21-CV-173-D, 2022 U.S. Dist. LEXIS 204379, at *7-9 (E.D.N.C. Nov. 9, 2022), Judge Dever found that ringless voicemail technology is a ‘call’ under the TCPA.
Although only a few courts have addressed whether a ringless voicemail is a call under the TCPA, every court that has addressed this question has held that a ringless voicemail is a call under the TCPA. See. e.g., Grigorian v. FCA US, LLC, 838 F. App’x 390, 393 (11th Cir. 2020) (unpublished) (per curiam); Schaevitz v. Braman Hyundai, Inc., 437 F. Supp. 3d 1237, 1246-49 (S.D. Fla. 2019); Saunders v. Dyck O’Neal, 319 F. Supp. 3d 907, 909-12 (W.D. Mich. 2018). Moreover, other courts have held that “call” as used in the TCPA means “to communicate with or try to get into communication with a person by a telephone.” See, e.g., Ashland Hosp. Corp. v. Serv. Employees Int’l Union Dist. 119 WV/KY/OH, 708 F.3d 737, 742 (6th Cir. 2013). And a ringless voicemail does just that. Furthermore, prerecorded voicemails, text messages, and calls that directly go to voicemail are subject to the same TCPA restrictions as traditional calls. See, e.g., Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 461-63 (7th Cir. 2020) (Barrett, J.); see also 47 U.S.C. § 227(b)(1)(A)(iii); Melito v. Experian Mktg. Sols., Inc., 923 F.3d 85, 92-95 (2d Cir. 2019); Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037, 1043 (9th Cir. 2017); Susinno v. Work Out World, Inc., 862 F.3d 346, 350-52 (3d Cir. 2017); Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637, 638 (7th Cir. 2012); Davis v. Safe Street USA, LLC, 497 F. Supp. 3d 47, 54 (E.D.N.C. 2020). And the FCC proposed a ruling earlier this year declaring ringless voicemails subject to TCPA prohibition. See Rosenworcel Proposes ‘Ringless Voicemail’ Robocall Protections, FCC (Feb. 2, 2022), https://www.fcc.gov/document/rosenworcel-proposes-ringless-voicemail-robocall-protections. In response, JH Chevrolet argues that the Supreme Court rejected the attempt to “graft old TCPA law onto new technology” in Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 209 L. Ed. 2d 272 (2021). See [D.E. 33] 12. However, in Facebook, the Court analyzed whether Facebook’s technology qualified as an “automatic telephone dialing system” (“ATDS”) under the TCPA, not whether text messages sent using such technology constituted a call. See Facebook, 141 S. Ct. at 1168-71; see also 47 U.S.C. § 227(a)(1)). In Facebook, the Court held that the technology Facebook used was not an ATDS. See Facebook, 141 S. Ct. at 1170. Facebook does not help JH Chevrolet. First, Beard does not contend that JH Chevrolet used an ATDS, and this action does not involve a dispute about using an ATDS. See [D.E. 59] 10. Second, in Facebook, the Court did not address ringless voicemail messages like the disputed calls in this action. Cf. Facebook, 141 S. Ct. at 1169-73. Third, voicemail technology existed when Congress enacted the TCPA. Considering the text of the TCPA, the plain meaning of the word “call,” and other courts’ conclusion that a ringless voicemail is a “call” under the TCPA, the court holds that a ringless voicemail is a “call” under the TCPA.