The dealership "did not call Plaintiff's cellular telephone line," the defense argued in court documents. "A call was not made because Plaintiff's phone number was not dialed, and his phone could not, and did not, receive any voice communication."
All About the Message, the distributor that the dealership had hired to send the voicemails, took the matter to Washington, D.C., in a petition to the FCC, but it was ultimately withdrawn after public backlash.
Experts on the Telephone Consumer Protection Act called such justification invalid and said the weight of the court decisions, including those involving Moss Bros. and the Naples dealership, simply outweigh the argument claiming the technology is exempt.
"Most people who review this, most lawyers who look at it, think it's a completely absurd argument," said Margot Saunders, senior counsel at the National Consumer Law Center, who has worked on ringless voicemail cases since 2015. "It would be considered a call since it sure looks like a call and it sounds like a call. ... Whether it makes the telephone ring of the consumer has nothing to do with whether it's technically a call."
Randy Henrick, a compliance lawyer at Ignite Consulting Partners who works with dealers, generally agrees with Saunders' analysis. But he's not as airtight on the subject, calling ringless voicemails less burdensome to the consumer.
"The argument is that they're not a traditional text message and that many cell phone carriers do not charge for them under a text message context," Henrick said. "It's less burdensome because it doesn't tie up a consumer's texting system."
Even so, he said it's hard to argue against the legal weight of the court decisions saying the practice falls under the law.
"In the courts where it's been challenged, it has generally been found to be a text message because it burdens the consumer," Henrick said.
More clarity on the legality of ringless voicemails might come soon from the FCC. In February, FCC Chairwoman Jessica Rosenworcel introduced a petition requesting the commission mandate written consent for ringless voicemails.
If her petition is accepted, it would permanently and undeniably place ringless voicemails under the Telephone Consumer Protection Act.