A pair of court documents in a potential landmark case were quickly making the rounds yesterday, as VoApps sought to prove, once and for all, that it’s Direct Drop Voicemail product should not be considered a call, as defined under the Telephone Consumer Protection Act.
News of the filings were first published by Eric Troutman at TCPAWorld.com. The filings were a declaration from the inventor of the Direct Drop Voicemail product and a response to a plaintiff’s motion for summary judgment in the case of Saunders v. Dyck O’Neal.
Back in 2017, a District Court judge ruled that VoApps’s Direct Drop Voicemails were akin to calls, for the purposes of having to comply with the TCPA. But now, VoApps is fighting back, making the argument that its underlying technology is different than text messaging because it does not place a call to the “consumer’s cellular phone number,” wrote David King, who founded VoApps before leaving the company in 2015. Instead, the Direct Drop Voicemail interacts with the carrier’s voicemail servers and not the individual’s cell phone.
Individuals can not use voicemail immediately after obtaining a new phone and phone account, like they can use text messaging, King said. Individuals must set up their voicemail accounts, because “voicemail service platforms rely on voicemail equipment that is centrally located in data centers or housed in telephone carrier central offices,” King wrote in his declaration.
Accompanying King’s declaration was a response from the defendant opposing a motion for summary judgment filed by the plaintiff. The defendant, using VoApps’s service, never technically called the plaintiff’s phone. Relying on King’s declaration, the defendant argues that since the plaintiff’s phone never received a “call” from the defendant, then the Direct Drop Voicemail should not be subject to the TCPA.
“First, the only telephone number the VoApps technology ever ‘called’ in this case was assigned to a business class landline and not a number assigned to a cellular device,” the defendant wrote in its response. “Second, even if the Court were to determine that Defendant placed a call to Plaintiff’s assigned cellular telephone number — which it did not — the record shows that at a minimum, there is a genuine issue of material fact as to whether Plaintiff consented to receiving such call within the meaning of the TCPA.”