QUESTION
We are interested in rolling out “direct drop” voicemails to people who
have already called us and have expressed an interest in getting approved. We
would like to do the same for our previous clients. None of the clients are on
the “Do Not Call” list nor are any the target of debt collection. All intended recipients are past leads and
clients. What guidance can you provide for this initiative?
ANSWER
A
very interesting scenario! And one for which, unless you are lending in the
Western District of Michigan, there is no clear-cut answer.
“Direct
drop” voicemail is a method by which a third-party vendor utilizes technology
to reach the consumer’s voicemail through a “back door”. Essentially, the technology
allows a company to deliver a prerecorded message to a consumer’s voicemail
without actually calling the consumer’s phone number. Whether “direct drop” voicemail is subject to
the Telephone Consumer Protection Act (TCPA) has been an issue for years. In
2014 and 2017, companies petitioned the Federal Communications Commission (FCC)
for guidance on this issue; however, the FCC has yet to provide same.
Until
this past year, we had very little guidance on this issue. In July, 2018, the
District Court for the Western District of Michigan issued a seminal opinion on
the issue finding that a company’s use of “direct drop” voicemail constituted
calls under the TCPA, thus requiring the called party’s consent. [Saunders v. Dyck O’Neal, Inc., 319 F.
Supp. 3d 907 (W.D. Mich., July 16, 2018)]
As to the binding effect of the opinion, note that a Federal District
Court opinion does not serve as binding precedent on other District Courts,
and, arguably, does not even serve as binding precedent in that District
(although it is considered “persuasive”).
Under
the TCPA, it is unlawful to “initiate any telephone call to any residential
line using an artificial or prerecorded voice to deliver a message without the
express prior consent of the called party unless . . . exempted by rule or
order of the Commission under paragraph 2(B)”. [47 U.S.C. s. 227(b)(1)(B)] There is no exception for
“established business relationships” nor is the restriction limited to debt
collection efforts.
The
Saunders case involved the use of direct drop voicemail in connection
with debt collection. The key issue in the case was whether the company needed
the consumer’s “prior express consent” to utilize the direct drop voicemail
system. In order to address this issue, the Court needed to determine if the
direct drop voicemail constituted a “telephone call” as defined under the TCPA.
Relying
upon prior decisions in which the courts have found that voicemail and text
messages are subject to the same TCPA restrictions as traditional telephone
calls, the Court found that the term “call” includes direct drop voicemail. The
Court stated that “the statue itself casts a broad net – it regulates any call,
and a “call” includes communication, or an attempt to communicate, via
telephone. Both the FCC and the courts have recognized that the scope of the
TCPA naturally evolves in parallel with telecommunications technology as it
evolves . . . “ [Saunders at 911] The Court further noted that “voicemails are arguably more of a nuisance
of consumers than text messages” and that limiting the TCPA to instances
wherein a company specifically dialed the consumer’s number and then left a
voicemail but to exclude a company’s “back door” ability to reach the
consumer’s voice mailbox would be an “absurd result”, as the TCPA “was created
to limit the harassment and nuisance that automated calls and messages place on
consumers . .. “. [Saunders at 911]
Thus,
if you contemplate using direct drop voicemail to reach consumers in the
Western District of Michigan, you should obtain the consumer’s prior consent.
Outside of the District, it is still a grey area. However, there is no doubt
that other Districts will consider the Saunders opinion in addressing
the issued.
Joyce Wilkins Pollison, Esq.
Executive Director &
Director/Legal & Regulatory Compliance
Joyce Wilkins Pollison, Esq.
Executive Director &
Director/Legal & Regulatory Compliance
