The Southern District of Florida recently ruled that ringless voicemails (RVM) are “calls” under the Telephone Consumer Protection Act (TCPA). In Schaevitz v. Braman Hyundai, No. 1:17-cv-23890 (S.D. Fla. Mar. 25, 2019) the defendant sent a pre-recorded RVM to the plaintiff soliciting a return call regarding trading in the plaintiff’s car for a newer model. The technology used created an internet-based computer-to-computer connection direct from the sender to the recipient’s voicemail box without causing the phone to ring. Schaevitz argued that the RVM was an unsolicited pre-recorded call sent to his cell phone in violation of the TCPA, further noting that any message (call, text, notification, or otherwise) to a cell phone causes an alert of some kind and that the similarities between a text and an RVM are such that protections afforded to texts should apply to RVMs. Braman Hyundai moved to dismiss attacking standing and whether Schaevitz stated claim both under the theory that no “call” occurred.
The Court noted that the FCC was poised but ultimately unable to address this question in a petition filed and withdrawn by All About the Message, LLC. Schaevitz. The Court itself almost addressed the question in a prior matter, but the parties there settled prior to an opinion issuing. The Court, though, was not left wholly unaided as the Western District of Michigan had ruled RVMs were calls last year in Saunders v. Dyck O’Neal, Inc.. And with that backdrop, the Court engaged in a detailed statutory analysis, as well as a presentation of relevant case law and FCC guidance on related issues. For example, courts and the FCC had previously determined that text messages should be considered calls despite text messages not appearing in the TCPA itself (largely because texts didn’t exist in 1991 when the TCPA was passed). In doing so, those courts and the FCC looked to the purpose and history of the TCPA to determine such communications were clearly contemplated or, at bottom, fell within the kind of communications and intrusions the TCPA sought to curtail. The Court then reviewed certain scenarios where liability applies under the TCPA despite lacking allegations or proved facts that the recipient heard a ring. For example, as a general matter, the TCPA does not require that a recipient answer the phone or be aware of the call as it is happening.
Next, the Court addressed whether an RVM—or the allegations made by Schaevitz regarding the received RVM—alleged a harm conferring standing. In answering yes, the Court noted that the portion of the TCPA alleged to be violated by the RVM and the allegations of the complaint were not merely procedurally but rather the exact harms the TCPA seeks to prevent. Looking to Saunders, the Court noted that the effect to Schaevitz is the same whether the phone rang or if the RVM simply appears—the recipient is notified of the new unwanted voicemail.
The breadth and detail of the Schaevitz opinion makes it more likely other courts will follow suit or, at minimum, be forced to address the merits of the reasoning contained therein. At the moment, the scorecard is stacked against RVMs, and it seems unlikely that the tide will turn absent FCC intervention or circuit-level opinions. Any business using RVMs should seriously consider the legal landscape with regards to their practices and monitor further development of this issue in the courts.