QUESTION
I am the compliance officer of a bank. Our servicing department recently came across a way to leave so-called “back-door” voicemails. I had
never heard of this term and and my research turned up very little to go
on. Apparently, it has something to do with being able to leave voicemails without ringing the
consumer’s phone. It seems deceptive to me. What is “back-door” voicemail” and
is it covered by a regulatory rule?
ANSWER
The place to start your research would be the Telephone Consumer
Protection Act (TCPA), which prohibits any person within the United States from
“mak[ing] any call…using any automatic telephone dialing system or an
artificial or prerecorded voice…to a telephone number assigned to a paging
service, cellular telephone service…or any service for which the called party
is charged for the call.” [47 USC § 227(b)(1)(A)(iii)]
Your question seems to be describing “direct-to-voicemail” messages. If
so, yours is a timely inquiry, since, in a case of first impression, a federal
district court in Michigan recently considered whether the term “call,” as used
by the TCPA, includes direct-to-voicemail messages - that is, voicemail messages
delivered within the electronic space without being announced by an audible
ring. [Saunders v. Dyck O’Neal, Inc., 2018 U.S. Dist., W.D. Michigan, July 16,
2018]
Briefly, the Federal Home Loan Mortgage Corporation (FHLMC) assigned
Dyck O’Neal, Inc. its interest in an outstanding debt owed by Karen Saunders.
Dyck O’Neal attempted to collect the debt by leaving about thirty automated
voicemail messages on Saunders’ phone over a twelve-month period. Each time,
Saunders received a notification on her phone that she had a new voicemail.
Dyck O’Neal had contracted with a company named VoApp, a third-party
vendor, to deliver the voicemails. This vendor’s technology reaches the target’s
voicemail through a so-called “back-door” in that, rather than calling the
target’s phone number and waiting to leave a message on the target’s voicemail,
VoApp’s technology calls a phone number assigned to the voicemail service
provider’s enhanced service platform (i.e., the voicemail computer or server),
not the target’s phone number. By routing the message through the server, VoApp
was able to deliver a message to the server space associated with the target Ms. Saunders, and then she received a notification that she had received a new
voicemail message without ever having received a traditional call.
Saunders sued, alleging violations of the TCPA. The defendant filed a
motion for summary judgment, arguing that the voicemails did not violate the
TCPA. But the federal district court in Michigan denied the motion for summary
judgment, holding that a direct-to-voicemail message qualified as a “call”
under TCPA’s section 227(b)(1)(A)(iii).
With respect to telephonic access to the consumer, the TCPA does cast a
broad net in regulating any “call,” which is a term that includes any
communication or attempt to communicate via telephone. It is worth noting that
the Court emphasized the effect of the call, as it opined that the “effect on
Saunders is the same whether her phone rang with a call before the voicemail is
left or whether the voicemail is left directly in her voicemail box” –
specifically, she receives a notification on her phone that she has a new
voicemail.
By leaving a voicemail directly in the server space associated with
Saunders’ phone, the defendant had attempted to communicate with Saunders via
her phone, which is the definition applied to the TCPA’s use of the term
“call.” Further, the automated message instructed Saunders to call back at a
specific telephone number, inviting additional communication over the
telephone. Thus, the effect on Saunders was the same whether her phone rang
with a call before the voicemail was left or whether the voicemail was left
directly in her voicemail box.
So, whether this technology offers “back-door”
voicemails or “direct drop” voicemails (another term referring to the same kind
of service), it would be smart to approach this issue with considerable care. Courts
have consistently held that voicemail messages are subject to the same TCPA
restrictions as traditional phone calls. By the way, the same can be said for
text messages. The U.S. Supreme Court has observed that “[a] text message to a
cellular phone, it is undisputed, qualified as a ‘call’ within the compass of §
227(b)(1)(A)(iii).” [Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 667 (2016)]
Jonathan Foxx
Managing Director
Lenders Compliance Group
