As we’ve reported in the past, Defendants using ringless voicemails have seen their chances of defeating TCPA suits dwindle and then recover some. After three straight district court losses, the founder of VoApps—makers of the DirectDrop ringless voicemail product—got personally involved and began supplying declarations explaining how the technology does not trip the TCPA. This appeared to be the best possible shot Defendants could take at arguing ringless voicemails are not covered by the TCPA.
Well, one court just rejected this “best shot” and ringless voicemail technology—at least as a TCPA compliance solution— is really on the ropes as a result.
In Gurzi v. Penn Credit, Case No: 6:19-cv-823-Orl-31EJK, 2020 U.S. Dist. LEXIS 56582 (M.D. Fl. March 30, 2020) the Defendant moved for summary judgment arguing that ringless voicemails do not trigger the TCPA. Unlike many past challenges the Defendant did not just make the argument that voicemail is a Title III information service—a terrible (IMO) argument that never went anywhere—but actually made the (stronger) argument that the ringless voicemail platform never actually makes a call to a number assigned to a wireless carrier. As such, the call does not—it seems—trigger TCPA coverage in the context of informational calls.
Nonetheless, the Gurzi court rejected Defendant’s argument finding that it exalted form (i.e. the words of the statute) over substance (i.e. the intent of the statute.)(Where have we seen that argument before?) In the Court’s view the fact that the Plaintiff’s cell phone number was used to help direct a message that could be retrieved by Plaintiff on his physical cellular handset is sufficient. The end.
While the Gurzi opinion is fairly lengthy the analysis is a bit thin and is certainly unrewarding for TCPA defendants. Despite Gurzi’s assertion that the statutory text covers RVM, the analysis never really explains why that is. Instead the reasoning seems to tacitly concede that the statute’s express language does not cover RVM messages, but that the intent of Congress and related-FCC rulings suggest a more expansive application of the TCPA is warranted in this context. The best news for Defendants, then, may be the lack of heft in the analysis here—the window is still cracked open, notwithstanding Gurzi’ attempt to slam it shut.
We’ll keep an eye on all ringless voicemail developments folks.