Ringless Voicemail Providers Fight Back Against TCPA Liability

  • Written by Eri J. Troutman of TCPAWorld

I’ve always been a fan of Capt. John Paul Jones. The notion of responding to a crew’s frantic requests to surrender with a baffled and indignant “I have not yet begun to fight” is both delicious and relatable-at least to me anyway. It’s not easy guiding a ship through troubled waters– especially when the cannon balls start flying and people want to find the exits. It is a scary (TCPA) world out there, after all, and danger indeed lurks at every turn.

Well, we can now count VoApps, Inc. among TCPAWorld’s most intrepid ne’er-say-diers.

After sitting on the sidelines for three separate rulings finding that ringless voicemail technology constitutes a “call” for purposes of the TCPA, the developer of DirectDrop ringless voicemail has finally begun to fight. And it is very good to see.

As I have alluded to several times–both on and while on the lecture circuit– defending ringless voicemail by arguing that the technology is not subject to Title II of the Telecommunications Act (i.e. that voicemail is an information service) is simply a dead end. The argument makes no sense given that text messages–also classified as information services–have long been subject to the TCPA. Plus just because a voicemail service is an information service it does not follow that leaving an actual voicemail is not, yet, the “making” of a call.  Yet this argument has been presented, over and over again, by Defendants arguing that direct to voicemail messages are outside the coverage of the TCPA. And–as predictably as the coming change in autumn foliage– courts have continuously found that such messages are calls subject to the statute.

But as many times as I have decried the arguments proffered to defend ringless voicemails I have also forcefully advocated that this technology is, indeed, outside the scope of the TCPA–just for a different reason. Simply put: direct drop voicemails are not calls sent to telephone numbers assigned to wireless carriers. Instead the voicemails are sent–sometimes using VPNs and sometimes using regular phone telephony–to business grade landline numbers. Hence these “calls” are not made to a number assigned to a wireless service for purposes of the TCPA’s restriction on automated technologies. Translation: direct to voicemail technology is not subject to the TCPA. (At least in most cases.)

And now–at long last–that rationale has been presented to a Court and supported by a brilliantly-crafted declaration by none other than the inventor of DirectDrop ringless voicemail–David King. Just today, a declaration by King was filed in opposition to summary judgment in the original Saunders case that started it all. (How do we find out about these things so quickly? 

In his 32 paragraph declaration, King describes exactly how the technology works and why it is not subject to the TCPA. In broad strokes, voicemail messages are always delivered to a separate server rather than to a telephone device or handset. That server is accessed using a Forward-To-Number assigned to an individual cell phone user’s phone as he/she moves from cell tower to cell tower. The Forward-to-Number is a “business class, landline telephone number assigned to the voicemail platform of the voicemail service provider that the cellular user has chosen.” And the DirectDrop product communicates only with the Forward-to-Number, not with any specific cellular number.

Cannon balls away.

As the brief (again just filed today) submitted by VoApps customer Dyck O’Neal perfectly argues in seeking to avoid summary judgment in Saunders:

"[DirectDrop] technology does not interact with any components of the Radio Access Network,” commonly referred to as the cellular network. Specifically, the [DirectDrop] technology does not interact with any of cellular towers, radio transmission equipment, or actual cellular devices or telephones in any way. Nor does the [DirectDrop] technology place a call to the consumer’s cellular phone number. Instead, the only call is placed to a voicemail service provider’s business class, landline number."

Now that’s how you defend ringless voicemail folks.

Importantly, DirectDrop CEO Paul Geiss appeared on my old podcast to promise users of his product that the company would stand behind them in litigation. And that is exactly what DirectDrop has done in Saunders. By making expert testimony from the inventor of the ringless voicemail product available to the Defendant in that case DirectDrop hs breathed new life into an entire communications medium.

So guess what? We’ve invited David King himself to join Squire Patton Boggs’ Unprecedented podcast this week to discuss the technology in further detail–and he has agreed. The interview will record this Thursday and you can expect an epic breakdown of this technology and golden defense tips at your finger tips when the Ninth Edition of the Unprecedented podcast is delivered next week.

For now, however, enjoy the briefs and declarations newly-submitted in Saunders. Available here: King Declaration and Response to Summary Judgment

About Eric J. Troutman
The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.