Saturday, May 30, 2020

Federal Court Rules Ringless Voicemail is a “Call” Under the TCPA

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Richard B. Newmanhttp://www.hinchnewman.com
Richard B. Newman is an Internet Lawyer at Hinch Newman LLP focusing on advertising law, Internet marketing compliance, regulatory defense and digital media matters. His practice involves conducting legal compliance reviews of advertising campaigns across all media channels, regularly representing clients in high-profile investigative proceedings and enforcement actions brought by the Federal Trade Commission and state attorneys general throughout the country, advertising and marketing litigation, advising on email and telemarketing best practice protocol implementation, counseling on eCommerce guidelines and promotional marketing programs, and negotiating and drafting legal agreements.

Telemarketers often ask “is ringless voicemail legal.”

Well, the first ringless voicemail message Telephone Consumer Protection Act decision says no.

Ringless voicemail employs a technology that permits a voice message to be placed directly upon a consumer’s mobile voicemail box, without “a call” or a charge. No call appears on a consumer’s telephone bill.

Over the last few years, there has been much discussion regarding the legality of ringless voicemail, including various petitions filed with the FCC by providers seeking an opinion on whether the technology is exempt from the TCPA. A federal judge in Michigan – in the matter of Saunders v. Dyck O’Neal – is the first federal or state judge to rule on this issue, and he did so by concluding that ringless voicemail is, in fact, a “call” regulated by the TCPA. In Dyck O’Neal, the defendant allegedly used the VoApps system to leave numerous ringless voicemail messages on plaintiff’s voicemail in connection with an outstanding debt.

Although ringless voicemails are not connected to any common carrier “call,” the court opined that Congress’ intended to prohibit “any call.” The Court also considered that because the plaintiff received and listened to the notifications, practically speaking, the effect is the same. The court did not buy plaintiff’s argument that ringless voicemail is an exempt “enhanced information service.” The judge also cited to past legal precedent holding that unanswered calls and voicemails are “calls” under the TCPA.

Unless this matter is successfully appealed or other courts chime in with a more business friendly analysis, marketers should ensure that they have obtained lawful prior express written consent when implementing ringless voicemail technology.

Richard B. Newman is an advertising attorney at Hinch Newman LLP. Email him at rnewman@hinchnewman.com.

Informational purposes only. Not legal advice. Always seek the advice of an attorney. Previous case results do not guarantee similar future result. Hinch Newman LLP | 40 Wall St., 35th Floor, New York, NY 10005 | (212) 756-8777

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