6th Circuit Revives Ringless Voicemail TCPA Suit

On June 1, 2023, a panel for the U.S. Circuit Court for the Sixth Circuit reversed a district court’s dismissal of a ringless voicemail lawsuit brought under the Telephone Consumer Protection Act (TCPA), holding that consumers can suffer harm for standing purposes under the TCPA when they receive a single ringless voicemail (RVM) on a personal phone. 

RVM technology makes it possible to “deposit[] voicemails directly into a recipient’s voicemail box, without placing a traditional call to the recipient’s wireless phone” and the defendant energy company had used it to advertise its services to the plaintiff and others.  The Sixth Circuit held that one RVM can satisfy Article III’s injury-in fact requirement, because it bears a close relationship to a common law “intrusion upon seclusion” theory of harm, which is a cause of action that provides relief for invasions into a person’s “right to be left alone.”  Furthermore, the Sixth Circuit found that the alleged conduct was aligned with the type of conduct Congress sought to regulate under the TCPA.  The Sixth Circuit therefore found that the plaintiff sufficiently alleged harm by the defendant depositing one RVM in the plaintiff’s voicemail box.  The Sixth Circuit rejected the defendant’s arguments to the contrary because they concerned the degree of harm, not the kind.

Accordingly, the Sixth Circuit reversed the district court’s dismissal, and remanded for further proceedings.

The case is Dickson v. Direct Energy, LP, No. 22-3394, 2023 U.S. App. LEXIS 13537, __ F.4th __ (6th Cir. Ohio June 1, 2023).