UPDATED: Going on the Offensive: Ringless Voicemail TCPA Defendant Seeks Major Ruling DirectDrop Is Not Covered by the TCPA

Now we’re talking.

As I reported a few weeks back, ringless voicemail juggernaut VoApps “fired the cannons” in opposing a brief summary judgment motion filed by the Plaintiff in the famous Saunders case. VoApps came to bat with a declaration from the creator of the DirectDrop ringless voicemail platform—David King—who later joined the Unprecedented podcast crew to discuss why his technology is not subject to the TCPA.

Despite the hard work in opposing the summary judgment effort, the Court effectively punted on the issue of whether ringless voicemail calls are made to numbers assigned to a wireless carrier—a critical TCPA element— and merely preserved an earlier ruling to the effect that RVMs are calls. What a nothing burger.

Well now the RVM defendant is going more fully on the offensive. Last night Dyck O’Neal—the unlucky focus of the Saunders litigation—filed a tight and well-supported motion for summary judgment asking the court to rule in Defendant’s favor to the effect that it did not violate the TCPA by using VoApp’s DirectDrop ringless voicemail platform to contact the Plaintiff because: i) the technology does not make calls to wireless numbers as a technical matter; and ii) it had the consent of the Plaintiff to make the calls anyway. The motion and supporting filings can be found here: Saunders MSJ; Ex. A – Resch Dec.; Ex. B – King Dec; Ex. C – Saunders Dep.

As the motion correctly argues, the application of the TCPA to the RVM platform begins with the language of the statutory text. The automated calling portion of the TCPA implies different consent obligations for calls to different phone systems. Calls to cell phone numbers may not be made without express consent. However calls to landlines do not always require such consent. The Plaintiff in Saunders argues that the calls at issue were made using an RVM, but that won’t matter if RVM is a call made to a landline and not a cell phone. And the key to the issue is understanding that the TCPA dos not trigger liability based on whether a call is received on or through a cell phone. Rather it looks at the method of delivery—if the call is made to a number assigned to a wireless carrier then it doesn’t matter if the call is picked up on a landline headset. And, conversely, if the call is made to a wireline number then it doesn’t matter (the argument goes) if the call is picked up via a cell phone.

As David King explained both in his affidavit in Saunders and in fuller detail on Unprecedented, the RVM call does not flow through the carrier network or engage with a phone number assigned to a wireless carrier service. Rather the call is made to business class landlines that serve as gateways for the carriers or their voicemail service providers in connection with the direct delivery of a message intended for a cell phone recipient. So although a cell number is used to route the message and the message is—possibly—retrieved via a cell phone, the cal itself is not made to a wirless number but rather through the carrier’s landline gateways. As the motion deftly puts it:

The prerecorded message was transmitted server-to-server by landline.

Interesting, no?

Plaintiff is expected to counter with a report from “expert” Randall Snyder to the effect that RVM is the same as a text message in terms of interaction with the cellular carrier’s network. That’s an interesting argument. If true it seems maybe text messages also do not constitute a “call” to a number assigned to a number assigned to a cellular carrier. Thanks for the idea! But Snyder’s actual point is that since an SMS message has been repeatedly found to qualify as a “call” the RVM must also be a “call.” But that issue isn’t in dispute in the case. Nonetheless the Defendant’s MSJ takes the assertion head on and distinguishes RVM from text messages: “Simply stated, the text message eventually finds residence on the cellphone; the voicemail message resides solely on the voicemail platform.”

Candidly, I’m not sure why residence on the cell phone should matter when the key is the delivery of the message under the plain language of the statute, but it certainly advances the argument that the delivery of RVMs does not interact with the carrier network. Seems to me the SMS angle is a red herring but it remains to be seen what the court thinks.

So users of RVM products take heart—a new day may be ahead. But caution is still urged. Until the Court rules on the Saunders MSJ TCPAWorld must consider these arguments compelling but untested. More to come.

Editor’s Note: This post was updated at 1:45 pacific time to add reference to the filed materials.