Debt Collection

Debt Collection and FDCPA Compliance – What About Voice Drops?

With Stratic Networks ringless voicemail technology, a lot of discussion has centered on the legality of voicemail drops. Ringless voicemail technology is when a message is left in a voicemail inbox without the caller ever ringing the phone. This practice is often associated with debt collection services, and its legality has been questioned in recent years. The issue is focused around whether the technology is compliant with the Federal Debt Collection Practices Act, or FDCPA. 

The controversy around ringless voicemail legality 

Numerous cases in recent years have challenged the legality of debt collectors’ ability to leave a voicemail. The Federal Communications Commission, which regulates media communications, has been petitioned to eradicate the practice. But the controversy surrounding such cases led to their dismissal. 

However, in May 2019, the Consumer Financial Protection Bureau (CFPB) released a proposed rule regarding the FDCPA. 

Under this rule, the CFPB suggests “clarify[ing] that placing a telephone call includes placing a telephone call that results in a ringless voicemail.” The reasoning for the bureau’s suggestion to clarify what constitutes a telephone call is because “given the specific language of FDCPA section 806(5), the bureau believes that Congress may have intended for this provision to apply to communications that present the opportunity for the parties to engage in a live telephone conversation or that result in an audio message.” 

The proposed rule also called for a telephone call cap for debt collectors, limiting calls to debtors to seven times within a seven-day period. And if a debt collector has spoken to a debtor, than the collector cannot call again until a week has passed. 

After a 90-day comment period on the proposed rule, the rule would only go into effect after one year of its publication in the Federal Register. 

Ringless voicemail under the TCPA

This notion of whether or not to identify voicemail drop messages stirs up a lot of questions when it comes to the Telephone Consumer Protection Act, legislation that safeguards consumer privacy. Recently, two court rulings — one in 2018 and one in 2019 — found that ringless voicemail technology is subject to the TCPA and qualifies as a call. 

The landmark decision in Saunders v. Dyck O’Neal Inc., 319 F. Supp. 3d 907, 911 (W.D. Mich. 2018) concluded a voicemail drop must adhere to the TCPA. This ruling was the first of its kind in the nation  — redefining ringless voicemail technology. 

In Schaevitz v. Braman Hyundai Inc., Case No. 1:17-cv-23890-KMM, 2019 U.S. Dist. LEXIS 48906 (S.D. Fl. March 25, 2019), the court dealt another blow to the practice of ringless voicemail, ruling that the technology is considered a form of communication and therefore subject to the TCPA. 

With these two court rulings, a trend could be emerging for ringless voicemail technology. 

Yet Eric J. Troutman, a class action defense lawyer and expert on the TCPA, argues that the best way to defend voicemail drops is through the statutory language, which restricts calls delivered to a number on a wireless carrier. Given that ringless voicemails are usually delivered using landlines assigned to third-party voicemail providers — and not through wireless carriers — this might be the best way to defend the technology going forward. 

These proposed changes and legislation are not fully set in stone. While it’s necessary to be aware of and understand policy and court rulings, currently ringless voicemail technology is fully compliant under the FDCPA given the FDCPA does not recognize voicemails as communication. This definition on voicemail drop messages is backed by two separate court rulings.

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