United States District Court, M.D. Florida, Orlando Division
GREGORY A. PRESNELL DISTRICT JUDGE.
matter comes before the Court without a hearing on the Motion
to Dismiss (Doc. 22) filed by the Defendant, Greenway
Chrysler-Jeep-Dodge, Inc. (henceforth,
“Greenway”), and the response in opposition (Doc.
23) filed by the Plaintiff, Clifton Picton (“Pictonâ).
“ringless” voicemail technology allows
advertisers to transmit recorded messages via the Internet
directly to the voicemail box associated with a cellular
telephone without causing the phone itself to ring. According
to the allegations of the Amended Complaint (Doc. 20) in this
putative class action, which are accepted in pertinent part
as true for purposes of resolving the instant motion,
Greenway used this technology to contact Picton on two
occasions in February 2018, leaving messages in his voicemail
box promoting an “inventory elimination” sale at
its dealership. (Doc. 20 at 12-13). Picton contends that
ringless voicemails are subject to the Telephone Consumer
Protection Act of 1991, 47 U.S.C. § 227, and because
Greenway did not have his express consent to contact him, the
two voicemails violated that act.
Rule of Civil Procedure 8(a)(2) requires “a short and
plain statement of the claim showing that the pleader is
entitled to relief” so as to give the defendant fair
notice of what the claim is and the grounds upon which it
rests, Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct.
99, 103, 2 L.Ed.2d 80 (1957), overruled on other
grounds, Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A Rule
12(b)(6) motion to dismiss for failure to state a claim
merely tests the sufficiency of the complaint; it does not
decide the merits of the case. Milburn v. United
States, 734 F.2d 762, 765 (11th Cir.1984). In ruling on
a motion to dismiss, the Court must accept the factual
allegations as true and construe the complaint in the light
most favorable to the plaintiff. SEC v. ESM Group,
Inc., 835 F.2d 270, 272 (11th Cir.1988). The Court must
also limit its consideration to the pleadings and any
exhibits attached thereto. Fed.R.Civ.P. 10(c); see also
GSW, Inc. v. Long County, Ga., 999 F.2d 1508, 1510 (11th
plaintiff must provide enough factual allegations to raise a
right to relief above the speculative level,
Twombly, 550 U.S. at 555, 127 S.Ct. at 1966, and to
indicate the presence of the required elements, Watts v.
Fla. Int'l Univ., 495 F.3d 1289, 1302 (11th Cir.
2007). Conclusory allegations, unwarranted factual deductions
or legal conclusions masquerading as facts will not prevent
dismissal. Davila v. Delta Air Lines, Inc., 326 F.3d
1183, 1185 (11th Cir. 2003).
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173
L.Ed.2d 868 (2009), the Supreme Court explained that a
complaint need not contain detailed factual allegations,
“but it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation. A pleading
that offers labels and conclusions or a formulaic recitation
of the elements of a cause of action will not do. Nor does a
complaint suffice if it tenders naked assertions devoid of
further factual enhancement.” Id. at 1949
(internal citations and quotations omitted). “[W]here
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has
alleged - but it has not ‘show[n]' - ‘that
the plaintiff is entitled to relief.'” Id.
at 1950 (quoting Fed.R.Civ.P. 8(a)(2)).
Voicemail and the TCPA
TCPA prohibits the making of “any call” other
than an emergency call “using an “automatic
telephone dialing system” to “any telephone
number assigned to a … cellular telephone
service” without the “prior express consent of
the called party”. 47 U.S.C. § 227(b)(1)(A)(iii).
Greenway's primary argument is that ringless voicemails
are “information service technologies” that are
not subject to regulation by the TCPA. Greenway points to
case law and FCC decisions holding that “voice and data
storage services” are “enhanced services, ”
which the FCC has consistently refused to regulate. (Doc. 22
at 6-7). Greenway also points to case law and FCC decisions
holding that voice mail services are “information
services” rather than “telecommunications
services” and are therefore not subject to the common
carrier regulations of Title II of the Communications Act of
1934, 47 U.S.C. § 151 et seq. (Doc. 22 at 7-8).
Based on this, Greenway asserts that “the TCPA simply
cannot apply to Plaintiff's claim as pled.” (Doc.
22 at 8). But the issue is not whether voicemail services are
subject to common carrier regulations under the
Communications Act (or any other act, for that matter). The
issue is whether the act of inserting a message into
someone's voicemail box without their permission might
run afoul of the TCPA. None of the authority cited by
Greenway sheds any light on this question.
other hand, courts have consistently held that calls
resulting in voicemail messages are subject to the TCPA.
See, e.g., Soppet v. Enhanced Recovery Co.,
LLC, 679 F.3d 637, 638 (7th Cir. 2012) (stating that the
TCPA “curtails the use of automated dialers and
prerecorded messages to cell phones … and routing a
call to voicemail counts as answering a call”) and
Castro v. Green Tree Servicing LLC, 959 F.Supp.2d
698, 720 (S.D.N.Y. 2013) (holding that for purposes of
liability under the TCPA, it was immaterial whether the calls
at issue had been answered by the plaintiff or had gone to
voicemail). Greenway does not argue that the
“ringless” quality of the voicemails here should
lead to them being treated differently than other voicemails
under the TCPA. Accordingly, the Court rejects the argument
that voicemails, or ringless voicemails, are not subject to
prayers for relief of both counts of the Amended Complaint,
Picton seeks, inter alia, a declaration that
Greenway's practices violate the TCPA and an injunction
prohibiting it from committing such violations in the future.
(Doc. 20 at 17, 18). Greenway contends that Picton lacks
standing to obtain declaratory or injunctive relief because
the allegations of the Amended Complaint do not establish a
sufficient likelihood that Greenway will cause additional
ringless voicemails to be transmitted to his voicemail box.
Picton responds that (1) that the proper way to attack a
prayer for relief is via a motion to strike rather than a
motion to ...