In a case of first impression, on July 17, 2018 the United States District Court for the Western District of Michigan held that a direct-to-voicemail message, or direct drop voicemail, is considered a “call” within the meaning of 47 U.S.C. § 227(b)(1)(A)(iii). Saunders v. Dyck O’Neal, Inc., 2018 WL 3453967, at *4.

Federal Home Loan Mortgage Corporation assigned Dyck O’Neal all of its right, title, and interest to an outstanding debt that Saunders and her then-husband owed. Dyck O’Neal attempted to collect the debt and contacted Saunders by leaving her approximately thirty voicemails from April 2016 to April 2017.

The Telephone Consumer Protection Act (the “TCPA”) prohibits any person within the United States from “mak[ing] any call … using any automatic telephone dialing system or an artificial or prerecorded voice … to any telephone number assigned to a paging service, cellular telephone service … or any service for which the called party is charged for the call.” Id. at *2. “Both the FCC and the courts have recognized that the scope of the TCPA naturally evolves in parallel with telecommunications technology as it evolves, e.g., with the advent of text messages and email-to-text messages or, as we have here, new technology to get into a consumer’s voicemail box directly.” Saunders at *3.

“Voicemails are intrinsically tied to cellular phones. By leaving a voicemail directly in 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.’ Further, Dyck O’Neal’s automated message instructed Saunders to call them at a specific phone number—inviting additional communication over the telephone.

The effect on Saunders is the same whether her phone rang with a call before the voicemail is left, or whether the voicemail is left directly in her voicemail box, i.e., Saunders receives a notification on her phone that she has a new voicemail. The effect on Saunders is also the same in receiving a text message—which would fall under the TCPA—each time, she received a notification on her phone that she had a new message, and had to take steps to review or delete the message. In fact, voicemails are arguably more of a nuisance to consumers than text messages. To limit the TCPA to instances where Dyck O’Neal specifically dialed Saunders’ phone number and then reached her voicemail, and exclude Dyck O’Neal’s back door into Saunders’ voicemail box, would be an absurd result. The TCPA was created to limit the harassment and nuisance that automated calls and messages place on consumers—which is precisely what Saunders alleges Dyck O’Neal has done. Dyck O’Neal cannot skirt the statute with VoApp’s new technology.”

Id. at *4.