The Telephone Consumer Protection Act (TCPA) prohibits any person from making any call using an automatic telephone dialing system (ATDS) or prerecorded message to any cell phone number or other service for which the called party is charged without the prior express consent of the called party. 47 U.S.C. § 227(b)(1)(A)(iii). For this reason, companies are constantly seeking alternative ways to communicate with consumers.
Enter “ringless voicemail” calls, which deliver voice messages directly to voicemail without the phone actually ringing. Earlier this year, All About the Message, LLC (AATM) filed a petition with the Federal Communications Commission (FCC) requesting that (1) it declare that the delivery of a voice message directly to voicemail does not constitute a “call” subject to the TCPA’s prohibitions on the use of an ATDS or prerecorded message; or in the alternative (2) grant a retroactive waiver for the company and its customers from liability for any past messages sent using this technology.
While AATM withdrew its petition on June 20, 2017, before the FCC could rule on the matter, courts have consistently ruled that voicemail messages are subject to the same TCPA restrictions are other calls made using an ATDS or prerecorded message.
For example, in Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637 (7th Cir. 2012), plaintiffs sued a debt collector for allegedly leaving voicemails on plaintiffs’ cell phones without prior express consent. The Court noted the TCPA prohibited “the use of automated dialers and prerecorded messages to cell phones, whose subscribers often are billed by the minute as soon as the call is answered—and routing a call to voicemail counts as answering the call.” Id. at 638. Plaintiffs were entitled to statutory damages for all calls received including voicemail calls. Id.
Similarly, in Powell v. West Asset Mgmt., 773 F. Supp. 2d 761 (N.D. Ill. 2011), plaintiff alleged a debt collector called him on his cell phone using an ATDS without prior express consent. Id. at 763. The Court ruled unanswered calls and voicemail messages were violations of the TCPA and plaintiff could recover on all illegal calls including voicemail messages and unanswered calls. Id.
In Castro v. Green Tree Servicing LLC, 959 F. Supp. 2d 698 (S.D.N.Y. 2013) plaintiffs alleged defendant debt collectors made ATDS calls to plaintiffs’ cell phones without prior express consent. Id. at 720. To avoid liability under the TCPA, defendant tried to distinguish between calls that were picked up by plaintiffs, and those that were unanswered or went to plaintiffs’ voicemail. But the court disagreed and explained that:
the TCPA clearly restricts the making of any call using an automatic telephone dialing system to a cellular phone, and does not distinguish between calls that are picked up and calls that go to voicemail. 47 U.S.C. § 227(b)(1)(A)(iii). Accordingly, for purposes of Plaintiffs’ TCPA claim, it is immaterial whether the Plaintiffs picked up all of Defendants’ calls or whether several of the calls went unanswered.
Finally, in King v. Time Warner Cable, 2015 U.S. Dist. LEXIS 88044 (S.D.N.Y. 2015) plaintiff alleged Time Warner Cable made calls to her cell phone without prior express consent, but TWC disputed the numbers of calls for which it could be held liable. The court held that “TWC violated the statute each time it placed a call using its ATDS without consent, regardless of whether the call was answered by a person, a machine, or not at all.” Id. at *12.
Courts have consistently ruled that voicemail messages are “calls” subject to the same TCPA restrictions as other ATDS or prerecorded messages. While there are no pending petitions related to “ringless voicemail”, it seems unlikely the FCC will rule differently in the future.