Saunders v. Dyck O'Neal, Inc.

319 F.Supp.3d 907

Karen SAUNDERS, Plaintiff,

v.DYCK O'NEAL, INC., Defendant.

Case No. 1:17-CV-335

United States District Court, W.D. Michigan, Southern Division.

Signed July 16, 2018

Alexander H. Burke, Burke Law Offices LLC, David Michael Marco, Larry P. Smith, SmithMarco, P.C., Chicago, IL, for Plaintiff.

Charity A. Olson, Brock & Scott, PLLC, Ann Arbor, MI, Doreen Lynne Hoffman Ulloa, Trott Recovery Services, PLLC, Farmington Hills, MI, for Defendant.

OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

GORDON J. QUIST, UNITED STATES DISTRICT JUDGE

On April 12, 2017, Plaintiff, Karen Saunders, filed an action under the Telephone Consumer Protection Act (TCPA) against Defendant, Dyck O'Neal, Inc. The facts arise out of Dyck O'Neal's efforts to collect a mortgage deficiency that Saunders alleges her ex-husband owes. From 2015 through 2017, Dyck O'Neal called repeatedly and left a number of voicemails on Saunders' phone. Dyck O'Neal used a vender called VoApp to leave prerecorded "direct drop" voicemails. From April 2016 to April 2017, Dyck O'Neal left approximately thirty of these voicemail messages on Saunders' phone. Saunders alleges that these voicemails are a violation of the TCPA. Dyck O'Neal filed a motion for summary judgment, arguing that the voicemails are not a violation. (ECF No. 35.) The matter is fully briefed. For the reasons that follow, the Court will deny Dyck O'Neal's motion.¹

Applicable Law

Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Material facts are facts which are defined by substantive law and are necessary to apply the law. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A dispute is genuine if a reasonable jury could return judgment for the non-moving party. Id.

The TCPA 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 any telephone number assigned to a paging service, cellular telephone service ... or any service for which the called party is charged for the call." 47 U.S.C. § 227(b)(1)(A)(iii). "Voluminous consumer complaints about abuses of telephone technology ... prompted Congress to pass the TCPA. Congress determined that federal legislation was needed because telemarketers, by operating interstate, were escaping state-law prohibitions on intrusive nuisance calls. The Act bans certain practices invasive of privacy."

Mims v. Arrow Fin. Servs., LLC , 565 U.S. 368, 370–71, 132 S.Ct. 740, 744, 181 L.Ed.2d 881 (2012). "The TCPA is a remedial statute that was passed to protect consumers from unwanted automated telephone calls ... [therefore,] it should be construed to benefit consumers." Gager v. Dell Fin. Servs., LLC , 727 F.3d 265, 271 (3d Cir. 2013) (internal citations omitted); see also Inge v. Rock Fin. Corp. , 281 F.3d 613, 621 (6th Cir. 2002) ("As a remedial statute, we must construe [the Truth in Lending Act's] terms liberally in favor of consumers." (emphasis added) ).

Background

Federal Home Loan Mortgage Corporation assigned Dyck O'Neal all of its right, title, and interest to outstanding debt that Saunders and her then-husband owed on a piece of property. Dyck O'Neal then began to contact Saunders in an attempt to collect the debt. In addition to calls, Dyck O'Neal left approximately thirty automated voicemail messages on Saunders' phone over a one-year period—each time, Saunders would receive a notification on her phone that she had a new voicemail.

Dyck O'Neal contracts with VoApp, a third-party vendor, to deliver messages to individuals' voicemails using VoApp's "DirectDROP" voicemail service. Rather than call the target's phone number and wait to reach the target's voicemail, VoApp utilizes technology to reach the target's voicemail through a back door. Specifically, VoApp's Adaptive Signaling technology "causes the mobile switch to make a call to a phone number assigned to the voicemail service provider's enhanced service platform (i.e. the voicemail computer or server), not the consumer's phone number." (ECF No. 27 at PageID.97.) By routing the message through the voicemail server itself, VoApp is able to deliver a voicemail message to the server space associated with the consumer² —the consumer then receives a notification that she received a new voicemail message, but without having received a traditional call.

Dyck O'Neal provides three things to VoApp in order for VoApp to make its direct drop voicemail messages: (1) the target's phone numbers; (2) the caller ID number to be displayed on the target's voicemail screen; and (3) the prerecorded message to record into the target's voicemail box. VoApp then makes the respective "calls" on a repeated basis, and targeted consumers begin to receive notifications that they have a new voicemail message each time VoApp does so. The target must then take steps to listen to the voicemail and delete it.

Discussion

This is a case of first impression. The parties dispute whether Dyck O'Neal's direct-to-voicemail messages—by VoApp—qualify as a "call" under § 227(b)(1)(A)(iii) of the TCPA. If the messages are a "call," then Dyck O'Neal's motion must be denied as a matter of law—and vice versa.

Courts have consistently held that voicemail messages are subject to the same TCPA restrictions as traditional calls.³ See, e.g., Soppet v. Enhanced Recovery Co. , 679 F.3d 637 (7th Cir. 2012)(awarding statutory damages for all calls received, including voicemails); Powell v. West Asset Mgmt. Inc. , 773 F.Supp.2d 761 (N.D. Ill. 2011) (concluding that unanswered calls and accompanying voicemail messages were violations of the TCPA); Castro v. Green Tree Servicing LLC , 959 F.Supp.2d 698, 720 (S.D.N.Y. 2013) (holding that it was immaterial whether the plaintiff answered the defendants' calls or whether the calls went to voicemail). The same can be said for text messages—the Supreme Court observed that "[a] text message to a cellular telephone, it is undisputed, qualifies as a ‘call’ within the compass of § 227(b)(1)(A)(iii)." Campbell-Ewald Co. v. Gomez , ––– U.S. ––––, 136 S.Ct. 663, 667, 193 L.Ed.2d 571 (2016). Neither party has offered, and the Court is unaware of, a case in which a court addressed whether direct-to-voicemail, or direct drop voicemails, are within the compass of § 227(b)(1)(A)(iii).⁴

The Ninth Circuit considered whether a "call" includes both voice and text messages, provided that the call is made "to any telephone number," as required by the statute, in Satterfield v. Simon & Schuster, Inc. , 569 F.3d 946 (9th Cir. 2009). The court analyzed the "to make any call" language, and looked to the "ordinary, contemporary, and common meaning of the verb ‘to call.’ " The court found that "call" in this context meant "to communicate with or try to get into communication with a person by a telephone," and noted that text messaging was not available when the law was enacted in 1991. Id. at 953–54. Citing the statutory purpose of the TCPA, i.e. , to protect the privacy interests of individuals from the nuisance and invasion of privacy by automated telephone calls, the court held "that a voice message or a text message are not distinguishable in terms of being an invasion of privacy." Id. at 954 ; see also Keating v. Peterson's Nelnet, LLC , 615 F. App'x 365, 370 (6th Cir. 2015) ("It is clear that Congress did not address, or even intend to address, the treatment of text messages when considering and passing the TCPA .... We thus unhesitatingly afford deference to the [FCC] holding that a text message should be treated as a ‘call’ for purposes of the TCPA." (emphasis added) ).

Saunders also points out Congress' use of the broad descriptor "any" in regulating "any call." In Pinchem v. Regal Medical Group, Inc. , 228 F.Supp.3d 992, 997 (C.D. Cal. 2017), the court cited the dictionary definition of "any" as "unmeasured or unlimited in amount, number, or extent; appreciably large or extended." The court accordingly concluded that a fax transmission to a phone, containing data rather than spoken word, is nevertheless "intended to express a message to the recipient through a telephone line," and is a "call" under the TCPA. Id.

The FCC similarly construed the TCPA broadly in determining that sending a text message to a consumer by email or web browser fell under the purview of the TCPA. The FCC stated, "[t]he TCPA's text and legislative history reveal Congress's intent to give the Commission broad authority to enforce the protections from unwanted robocalls as new technologies emerge . We therefore believe Congress intended the word ‘dial’⁵ to mean initiating a communication with consumers through use of their telephone number by an automated means that does not require direct human intervention." FCC 2015 Ruling , 30 F.C.C. Rcd. 7961, at ¶¶ 113–15 (2015) (emphasis added), decision set aside in part by ACA Int'l v. FCC , 885 F.3d 687 (D.C. Cir. 2018). The FCC concluded, "[f]inding otherwise—that merely adding a domain to the telephone number means the number has not been ‘dialed’—when the effect on the recipient is identical, would elevate form over substance, thwart Congressional intent that evolving technologies not deprive mobile consumers of the TCPA's protections, and potentially open a floodgate of unwanted text messages to wireless consumers." Id. at ¶ 115.

Dyck O'Neal emphasizes that it did not dial Saunders' cellular telephone number. Instead, Dyck O'Neal "deposit[ed] a voicemail message directly on a voicemail service"—an action it insists is unregulated. "To do this, VoApp's patented Adapt-Sig technology created and transmitted a series of network signaling events into the network. Once a connection was established, the voice message was then played into the voice mail box from VoApp's server without ever placing a call to Plaintiff's...