Single Voicemail Enough to Violate Telephone Consumer Protection Act

A single voicemail message left on a cellphone without permission is enough to allow an individual to proceed with a class-action lawsuit alleging violations of the Telephone Consumer Protection Act of 1991, a panel with the 6th Circuit Court of Appeals ruled on June 1.

The appellate panel reversed a District Court ruling that found Matthew Dickson lacked standing to pursue a lawsuit against Direct Energy LP because he suffered no concrete harm.

“The 6th Circuit’s ruling in Dickson v. Direct Energy resolves a critical legal issue for TCPA plaintiffs on Article III standing and will allow our case to move forward and hopefully secure a judgment for the in excess of 2.5 million class members who were subjected to Direct Energy’s illegal prerecorded telemarketing calls,” Dickson’s attorney, Brian K. Murphy, said in an email.

The TCPA allows civil penalties of $500 per call, or $1,500 for “willful violations.” Murphy, a partner with the Murphy Murray Moul + Basil law firm in Columbus, Ohio, said Dickson is seeking damages in the range of $1.4 billion to $4.2 billion for Direct Energy’s robocalling campaign.

Dickson alleged in a lawsuit that he received “multiple” ringless voicemails, known as RVMs, on his cell phone in November 2017. RVM technology allows telemarketers to automatically dial telephone numbers and deliver prerecorded voice messages without triggering the device’s ringer.

Congress passed the TCPA in 1991 to bar automatic telephone calls to people who have not given permission. Dickson alleged that the pre-recorded messages placed on his cell phone by “Nancy Brown with Direct Energy” were a nuisance and a violation of the law. He filed a lawsuit and sought class-action status to seek damages for an estimated 2.5 million consumers who received voicemails during Direct Energy’s telemarketing campaign.

During discovery, Dickson said he received 11 ringless voicemails from Direct Energy. An expert for Direct Energy, however, concluded that only one of those RVMs came from the company, which sells electricity distribution plans to residents and businesses.

U.S. District Judge John R. Adams, with the Northern District of Ohio in Akron, ruled that a single RVM was not enough concrete harm to give Dickson standing because Dickson was not charged for the call and the call did not tie up his phone.

Dickson appealed, arguing that even one call was an “intrusion upon seclusion.”

The 6th Circuit panel said it has never before been asked to decide whether a single call is enough to give a consumer standing under the TCPA. The panel reviewed several decisions by the Supreme Court and other Circuit Courts to decide that it is. Citizens have a common-law right to privacy, which includes the right to be left alone, the panel said.

“From a lay perspective, we can see why members of the public and Congress, through the TCPA, deemed such calls intrusive,” the opinion says. “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.”

The panel said the District Court relied on two 11th Circuit rulings that found an invasion of privacy must be “substantial” to create a concrete harm that would give Dickson standing to pursue his lawsuit. Those rulings are “not persuasive,” the panel said, because they did not look to “both history and the judgment of Congress to determine whether an intangible harm is sufficiently concrete to constitute an injury in fact.”

“Dickson’s receipt of an unsolicited RVM bears a close relationship to the kind of injury protected by the common law tort of intrusion upon seclusion; and his claimed harm directly correlates with the protections enshrined by Congress in the TCPA,” the panel said. “Therefore, Dickson suffered a concrete injury in fact sufficient for Article III standing purposes.”