Beard v. John Hiester Chevrolet: Court Holds Ringless Voicemail is a Call for TCPA Purposes

Sideways Thumb signA consumer provided her information to a dealership by phone and through its website. Soon after providing this information, the consumer received several telemarketing voicemails from the dealership. The consumer called and revoked consent for one of her cellphone numbers and then filed a class-action lawsuit against the dealership. The dealership moved to have the case dismissed.

11/17/2022 4:25 P.M.

4.5 minute read

Beard v. John Hiester Chevrolet, LLC, No. 5:21-CV-173-D, 2022 WL 16840332 (E.D.N.C. Nov. 9, 2022)

By Laura Dadd – Compliance Analyst

Note: ACA provides Daily Decisions as an educational benefit for members. The information presented in the Daily Decision does not reflect ACA’s views about the validity of the allegations or the conclusions reached by the courts.

Background:

A consumer was considering buying a vehicle from a dealership. She provided information online and via telephone to a dealership and a website that provided information to the dealership. The consumer had two cellphone numbers at the time and called the dealership using her phone number ending in 6590 to ask the dealership about a vehicle. She then provided her information on the dealership’s website. The website required the consumer to click a box next to “I agree to Terms of Service, Privacy Policy, and Privacy Notice” to continue to the next page in the process. These appeared in a light red color to indicate hyperlinking, and the other words in the statement appeared in black. The hyperlinked agreements contained passages notifying the consumer that her information could be used “for our marketing purposes” and “for our affiliates to market to you.”

Roughly a month after providing the information, the consumer received several telemarketing voicemails to her 6590 number. The parties dispute whether the messages were ringless voicemails. The consumer called the dealership back from her 0677 number and left a voicemail stating, “My number is (xxx) xxx-0677. Do not call this number. I’m not interested in a car. I have not done business with y’all. I work a full-time job. My number is (xxx) xxx-0766.” The dealership did not call the 0677 number after this message.

The consumer filed a class-action lawsuit claiming that the prerecorded voicemails violated the Telephone Consumer Protection Act and caused injuries, including, “invasion of privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion,” because the prerecorded voicemails made the consumer “stop what she was doing and listen to the pre-recorded messages.” The dealership moved for summary judgment, claiming that ringless voicemails are not calls under the TCPA, the intangible harms that the consumer alleges are not a “concrete injury” sufficient to support Article III standing, and even if ringless voicemails are calls and the consumer has standing, she provided prior express written consent to be contacted.

Decision:

The court began its decision reviewing the issue of ringless voicemails and whether or not they constitute calls under the TCPA. The dealership argued that the ringless voicemails did not qualify as calls under the TCPA. The court admitted that only a few courts have reviewed this issue, but all of them have held that a ringless voicemail is a call under the TCPA. The court stated that “voicemail technology existed when Congress enacted the TCPA. Considering the text of the TCPA, the plain meaning of the word ‘call,’ and other courts’ conclusion that a ringless voicemail is a ‘call’ under the TCPA, the court holds that a ringless voicemail is a ‘call’ under the TCPA.”

Next, the court looked to the dealership’s claim that the consumer lacked Article III standing to bring her claim. The dealership argued that the intangible harms that the consumer alleged are not a “concrete injury” sufficient to support Article III standing. The court stated that it followed the reasoning in Gadelhak, which held that an unsolicited call to a consumer’s cellphone constitutes a concrete injury for a TCPA claim. The court stated that it “[t]herefore, [] conclude[d] that receiving a ringless voicemail supports standing under Article III for a TCPA claim so long as there is a connection to a traditional common law injury.”

Having sided with the consumer on the first two issues, the court turned its attention to the question of whether the consumer provided prior express consent to be contacted. The dealership argued that the consumer provided prior express consent by clicking the appropriate box on the website. The court found that the consumer had clicked on the “I agree” box and that the hyperlinked documents highlighted in the text satisfied any disclosure requirements. By clicking on the “I agree” box, she provided her consent to be called under the TCPA.

The court also found that while she revoked consent to be called at the 0677 number, she did not revoke consent for the 6590 number. Therefore, the dealership acted consistently with the consumer’s prior express written consent.

The court granted summary judgment and dismissed the action.

ACA’s Take:

While ringless voicemails are not directly discussed in the TCPA, several courts have held that they are considered calls and are actionable under the TCPA. Therefore, if your business uses this type of technology, it still needs to have prior express consent to leave ringless voicemails.

Attorneys for Plaintiff:

Ignacio Javier Hiraldo, IJH Law, Manuel Santiago Hiraldo, Hiraldo P.A., David Matthew Wilkerson, The Van Winkle Law Firm.

Attorneys for Defendant:

Elisa Cyre Salmon, The Salmon Law Firm, LLP, Robert Anthony Buzzard, Buzzard Law Firm

  • ACA’s Daily Decision is powered by ACA’s Litigation Advocacy and Compliance Teams.
  • If you’ve recently obtained a judicial opinion that might benefit other ACA members, email it to us: [email protected].
  • Join the discussion on legal and compliance topics with your fellow members on the Members Attorney Program community on The Hub. Simply log on to The Hub and select Members Attorney Program under the Groups menu.

To receive notifications about ACA content—including member alerts, upcoming events and new products—text ALERTS to 96997. Message and data rates may apply. Message frequency will vary. To opt-out at any time, reply STOP to any message we send.