In Caplan v. Budget Van Lines, Case No. 20-CV-130 JCM, 2020 U.S. Dist. Lexis 136865 (D. Nv. July 31, 2020) the Court held that Defendant’s use of RVM to solicit consumers that entered a phone number in a website field but did not actually submit their data to the company by clicking a submit button triggered the TCPA. The Defendant had moved to dismiss the complaint arguing both that RVM is not a “call” because voicemails are an “information service”—again, stop making this argument folks it does not hold water— and because RVM do not interact with the cellular network—a fact which is technically true but almost certainly not alleged on the face of the complaint.
The Caplan court had little trouble rejecting both arguments. The “information service” argument is essentially gibberish and the Court waved it away by noting that text messages are also “information services”—a highly dubious categorization, BTW—but have always been subject to the TCPA. As to the “cellular network” argument the court found that Defendant was trying to elevate “form over substance.” Notably, a properly supported motion raising the “cellular network” angle should be a winner in some cases—the text of the statute simply does not apply to informational RVM’s deployed to business class landlines—but the fact that the messages at issue likely qualified as marketing completely guts this argument (pre-recorded marketing calls to landlines are covered by the TCPA.) So the Defendant lost its critical substantive defense at the pleadings stage and ceded a huge merits win to the class pre-certification, while highlighting a critical common issue. Where have we seen that before?
But while TCPA defendants continues to struggle with the ins and outs of class action defense, the larger issue here is that Caplan is now the FIFTH case to hold ringless voicemails are subject to the TCPA—with zero cases holding otherwise. So for those involved with TCPA compliance—be highly cautious anytime your sales team suggests deploying RVM to contact unconsented, screenscraped, skip traced, or “fielded-but-not-submitted” phone numbers. Trouble.