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October 25, 2018Download PDF

Towards Resolution: Ringless Voicemails under the TCPA

As set forth more fully in Katrina Carroll’s June 2018 blog post, Drop it Like it’s Not: “Ringless” Voicemails and the TCPA, ringless voicemails may represent a new area of technology that is not expressly referenced in existing law. As recent opinions suggest, however, existing federal regulation is better suited to regulate “ringless” voicemails than thought.

A “ringless” voicemail is possible thanks to recent technology that allows companies to place a new voicemail in your cellphone’s voicemail inbox without an accompanying telephone ring. The technology used to deliver “ringless” voicemails makes a data connection to a voicemail server directly. The technology then passes the cellular telephone number of the intended recipient to the voicemail server in order to identify the particular voice mailbox of the intended recipient-cellular user. The message then is deposited in the voicemail box of the intended recipient, and the user’s voicemail will alert the user that a new voicemail has been received. Oftentimes, receipts of new voicemails are indicated by audio and visual cues as well as by a transcribed copy of the voicemail message. Companies do all of this without any user consent.

In Silbaugh v. Censtar Energy Corp., Case no.: 1:18-cv-161, currently pending in the Northern District of Ohio, the court recently rejected a defendant’s argument based on the distinction between ringless voicemails and traditional calls under the Telephone Consumer Protection Act (“TCPA”). The defendant moved to dismiss a TCPA claim pursuant to Federal Rule of Civil Procedure 12(b)(1), alleging that the user lacked standing to file suit as a matter of law because she suffered no actual harm when a ringless voicemail was placed into her voicemail inbox without her consent. Put another way, the defendant argued that the plaintiff did not sustain “loss of money or property or other harm contemplated by the TCPA that would give rise to Article III standing.”

The court found that the alleged harms caused by a ringless voicemail were “substantively indistinguishable” from the harms other courts have found to satisfy the injury requirement of Article III standing. In ruling, the court noted that the plaintiff and other users received messages on their voicemail systems that they did not authorize, from an entity that they had no relationship with, and that they had to take time from their day to review the messages before knowing they were unsolicited and unwanted messages. The plaintiff and other users were often audibly alerted to the receipt of these unwanted voicemails, which is similar to a ringtone for calls or an alert for text messages.

Additionally, the court based its ruling on allegations that the plaintiff pays for space on a voicemail server, which space is occupied by the unwanted voicemails. These injuries are likened to the lost call opportunity created by faxes, which temporarily tie up the phone line, as well as phone calls and text messages that use a portion of an allotment paid for by the phone’s user. The court was satisfied that the plaintiff had alleged actual harm sufficient for standing in the form of nuisance/invasion of privacy, monetary cost, and waste of time and resources.

Likewise, in Albrecht v. Oasis Power, LLC, Case no.: 1:18-cv-01061, currently pending in the Northern District of Illinois, the court recently rejected a similar argument for dismissal of a TCPA claim. The defendant urged the court to find that user did not have Article III standing because he did not sustain any substantive injury when he received his “ringless” voicemails. In support, the defendant argued that the calls could not have caused much bother because they were ringless, and that they could not have imposed any costs because they were free.

In flatly rejecting the defendant’s arguments, the court noted that the TCPA “establishes substantive, not procedural, rights to be free from telemarketing calls consumers have not consented to receive, and both history and the judgments of Congress suggest that violations of this substantive right are sufficient to constitute a concrete, de facto injury.”

These recent opinions support the author’s view that ringless voicemails are no different under the TCPA from faxes, text messages, and whatever other creative technology advertisers may design to contact consumers without their consent.