Well it has been a long bumpy road for ringless voiemail in TCPAWorld.
I remember, not so long ago, when ringless voicemail providers were telling customers that voicemail was not covered by the TCPA based on some awful “Title II” vs “Title III” argument that made zero sense.
Still there were some ups along with the big downs-the Eleventh Circuit, in particular, suggested ringless voicemails did not cause harm. (Then again, it is unclear whether anything causes harm down in Florida these days–and that’s not a political statement.)
That’s why today’s news is so discouraging for those folks who are still using ringless voicemail.
The Sixth Circuit Court of Appeals–covering Kentucky, Michigan, Ohio and Tennessee–held last week that receipt of even a single ringless voicemail does cause harm for purposes of Article III. That means that federal courts have jurisdiction to hear claims–and Plaintiffs have standing to bring claims–arising out of the receipt of even one unwanted RVM.
In Dickson v. Direct Energy, No. 22-394 (6th Cir. 2023) the Court reached this conclusion the Court found a TCPA claim is akin to a privacy claim under the old common law idea that people have the right to be “let alone.” (This phrase emanates from a famous law review article that these judges obviously have not read because it is NOT discussing the right to seclusion–as they all seem to assume–but the right not to have one’s private affairs publicly aired.)
As the Court points out, however, “the scope of liability for the actual tort of intrusion upon seclusion is more circumscribed and confines liability to cases where a defendant’s conduct is “highly offensive to the ordinary reasonable man.” But that is not the limit of what Congress may prohibit as conduct may impose a burden on seclusion even where it is not highly offensive.
The Sixth Circuit also rejected the reasoning of the Eleventh Circuit’s decision in Salcedo–which is now on en banc consideration in Drazen–concluding “But Salcedo seems to misapply Spokeo in reasoning that intrusion upon seclusion requires evidence of a substantial intrusion, and the plaintiff’s “isolated,” “momentary” injury fell short of that standard; therefore, the plaintiff lacked a historical analogue to his claimed harm.”
So in the Dickson court’s view any intrusion is sufficient to afford standing–a “substantial intrusion” is not required. That’s a real broadening of the standing approach–and it stands in amazing and direct conflict with Eldridge’s polar opposite conclusion that only “extreme” intrusions cause standing.
Still, however, there is some good news here for TCPA defendants. The court’s reasoning looked closely at the PRIVATE NATURE of a phone number. It stands to reason that where a phone number is listed PUBLICALLY the standing component may not be present:
For example, some consider their phone number a matter of private information in and of itself. People commonly exercise discretion in publicizing their phone numbers, entrusting them only to their circle of friends, family, and select others on an asneeded basis. It follows that they may not wish for strangers or unfamiliar businesses to directly reach their personal phone lines. In addition, phone numbers are relatively fixed and attached to the individual. In the ordinary course of things, they are seldom changed which could make it difficult to evade unwanted communications once one’s phone number is discovered. And finally, receipt of unwanted voicemails (for example) to a personal telephone also undermines a sense of privacy, because being prompted to consider such messages for review and then disposal is disruptive of one’s personal tim —particularly given that the recipient might forever be prompted to do so until it is done. In these ways and others, telephones are logically part of one’s private domain to which the right to be left alone extends.
Keep that in mind.
In the end Dickson holds that receipt of even a single unwanted ringless voicemail will cause an injury to one’s sense of seclusion–however small–at least where a private phone number is involved.
So look out anyone who still thinks ringless voicemails are some sort of compliance tool–they most certainly are not. And while you might get bailed out in some jurisdictions, Dickson is well reasoned and persuasively written. I suspect many courts will follow it–and courts in the Sixth Circuit have to follow it. You’ve been fairly warned, says I.