Last month, a Michigan federal district court judge denied defendant’s motion for summary judgment regarding application of the Telephone Consumer Protection Act (“TCPA”) to “direct drop” voicemail messages (also known as “ringless voicemail”). Emphasizing the “broad net” cast by the TCPA, Judge Gordon J. Quist of the Western District of Michigan held that such messages constitute “calls” under the statute.
Plaintiff Karen Saunders alleged that defendant Dyck O’Neal, Inc., made repeated debt collection calls to her over the course of a year. In addition to these calls, defendant left approximately 30 direct drop voicemails on plaintiff’s mobile phone. Dyck O’Neal argued that these voicemails did not fall within the scope of the statute, as its service provider, VoApp, did not dial Saunders’ cell phone number to leave the message, but instead, through alternate technology, placed the message directly on a voicemail service. The court rejected this argument, finding that “by leaving a voicemail directly with the server space associated with Saunders’ phone, Dyck O’Neal was attempting to communicate with Saunders via her phone—which is the definition applied to the TCPA’s use of ‘call.’”
The service provider in Saunders filed a petition for declaratory ruling with the Commission in 2014, arguing that its service should not be covered by the TCPA. Last year, All About the Message, LLC, another service provider, again sought a declaratory ruling, although it later withdrew its petition. The FCC has not yet spoken on this issue.