Sales folks are so creative.
Always looking to obtain the upper hand in a COVID-ravaged market, sales teams will often dream up highly novel ways to generate consumer engagement. Compliance folks need to be ever-wary of TCPA risk created by fanciful new engagement practices.
Here’s an example.
A moving company decides to use ringless voicemail drops to communicate with consumers who enter a phone number into a website field but that who never actually click a button to create an account or submit their contact information to the business. The thinking is—presumably—that the consumer is in the market for moving services (why else would he/she be on the website?) so reaching out to them as soon as a phone number is entered is a good way to identify leads. Sure the consumer never completed the form or formally submitted the number (i.e. provided consent) to be called, but—the thinking goes—that risk can be ameliorated by using ringless voicemail since, you know, that doesn’t trip the TCPA.
Creative. But ever so wrong.
As we’ve reported previously, users of ringless voicemail solutions continue to get hammered with TCPA rulings determining that RVM technology does indeed constitute a “call” subject to the TCPA. While the original line of cases on the issue looked at the rather odd (read: bad) argument that RVM is not a “call” because voicemail constitutes an “information service,” the most recent line of cases has rejected the more robust (read: good) argument that RVM does not trigger the TCPA because RVM drops are not made using a number assigned to a wireless carrier.
Well in a new case out of Nevada the creative moving-company Defendant managed to lose both arguments at once—and at the pleadings stage, no less. That’s actually really tough to accomplish. But not in a good way.
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.
One last quick note. The judge in Caplan is the same judge that just dismissed a Plaintiff’s TCPA case as potentially “manufactured” following Stoops. Take from that what you will.