Classifying a Ringless Voicemail
Whether a ringless voicemail is considered a “call” under the Telephone Consumer Protection Act (TCPA) has been a widely debated subject. However, in the recent case of Schaevitz v. Braman Hyndai, Inc., the second District Court determined that this type of voicemail should be considered a call under the TCPA. This follows the first decision made on the matter, made by a Michigan Western District Court in July 2018.
It is anticipated that the second District Court’s decision will influence future decisions made by lower courts. The court presented six reasons for its decision:
- The ordinary meaning of the word “call” is “to communicate with or try to get into communication with a person by a telephone,” which is what the user of a ringless voicemail system is trying to accomplish.”
- Courts have consistently held that voicemail messages containing a prerecorded message are “subject to the same TCPA restrictions as traditional calls,” and that the statute “does not distinguish between calls that are picked up and calls that go to voicemail.”
- Although the TCPA is silent on text messages, the FCC has held that texts are also “calls” within the meaning of the TCPA.
- It doesn’t matter whether the consumer’s phone actually rings because the TCPA “does not require that the recipient of the call answer the phone or somehow be aware of the call.”
- A “ringless” voicemail is “no less intrusive than a standard voicemail or text message.”
- Construing a “ringless” voicemail as a “call” is consistent with Congress’s purpose in enacting the TCPA and protecting consumers from receiving unwanted and intrusive telephone calls.
Overall, the court determined that a ringless voicemail was similar enough to a call or text message to qualify as a “call” under the TCPA.