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Judge Rules on MTD in TCPA Telemarketing Case Involving Ringless Voicemail

A District Court judge in Florida has granted in part and denied in part a motion to dismiss a lawsuit filed against a company accusing it of violating the Telephone Consumer Protection Act by using a ringless voicemail platform from Stratics Networks to leave telemarketing-related voicemails on the cell phones of individuals without first obtaining the proper consent to do so.

A copy of the ruling in Schaevitz v. Braman Hyundai can be accessed by clicking here.

The plaintiff accused the defendant of transmitting a pre-recorded voicemail message in an attempt to persuade the plaintiff to trade in his car and buy a newer one. The plaintiff said he never provided the defendant with express consent to be contacted.

In filing the class-action suit, the plaintiff alleged the defendant violated two counts of the TCPA: by transmitting – or directing third parties to transmit – calls using an artificial or prerecorded voice to the cellular telephone numbers of the plaintiff and members of the class without permission and that it did so knowingly and willfully.

The defendant attempted to make five arguments in seeking dismissal: that the plaintiff lacked standing because he did not receive a “call” within the meaning of the TCPA, that the plaintiff lacked standing to seek declaratory or injunctive relief, that the plaintiff did not receive a “call” and therefore failed to state a claim, that the TCPA violates the First Amendment, and that the plaintiff failed to adequately allege the defendant knowingly or willfully violated the TCPA.

The judge denied the motion to dismiss on the argument that the plaintiff did not receive a “call” as defined by the TCPA, granted the motion to dismiss the claim for injunctive and declaratory relief, denied the motion that the plaintiff failed to state a claim, denied the motion that the TCPA violates the First Amendment, and denied the motion that the defendant acted willfully or knowingly.

“A construction of the TCPA in which a ‘ringless’ voicemail is a ‘call’ is consistent with Congress’s purpose in enacting the TCPA,” wrote Judge K. Michael Moore in his ruling. “The TCPA was enacted to address certain invasive practices related to ‘unrestricted telemarketing,’ and is designed to protect consumers from receiving unwanted and intrusive telephone calls. The purpose of the TCPA is to protect consumers from the ‘nuisance and privacy invasion’ associated with unsolicited telemarketing telephone calls and fax advertisements.”

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