There’s an interesting tension between platforms and callers that use their services when it comes to the TCPA.

And it all comes down to who is actually “making” the call.

This is so because the TCPA only applies to individuals that make or initiate calls–which is why lead gen data brokers always seem ti get off easy and the lead buyers are always caught in a snare.

But in the platform context, the caller wants the platform to be viewed as the “initiator” wheras the platform operator always wants to be very careful to be nothing more than a conduit.

Well in Saunders v. Dyck-O’Neal, 2025 WL 553292 (W.D. Mich Feb 19, 2025)–and unbelievably old case I can’t believe is still around– Defendant moved for summary judgment arguing it could not be liable for ringless voicemails left by the (in)famous VoApps.

To my eye this motion was a real long shot. The facts here are pretty clear. Per the order:

Dyck O’Neal provided VoApps with (1) the telephone number to be contacted, (2) the day and time the voicemails were sent, and (3) the caller ID number to be used. Dyck O’Neal also selected the message to be played. For example, one script of the voicemail message provided: “This is Dyck O’Neal with a message. This is an attempt to collect a debt. Please do not erase this message, and will you call us at 1-877-425-8998. Again, that number is 1-877-425-8998.” (ECF No. 294-8 at PageID.4091).

Ok, so the Defendant gave a file of numbers to the platform, told the platform to deliver a specific message at a specific time and also supplied the DIDs. I mean, long as the platform faithfully carried out those instructions I don’t see how you get around a determination that Defendant “initiated” those calls– they were the party instructing the transmission of the call. So yeah, they initiated the calls.

And that is just what the Court held.

The Court also held Defendant could be liable under vicarious liability principles since it controlled VoApps in the context of sending the messages:

Dyck O’Neal’s involvement was not minimal. It decided what phone numbers would be called. It decided what prerecorded voicemail messages would be played. It uploaded a “campaign” each day, on the day it wanted calls to be made. It had the message it wanted played during calls recorded and designed the prerecorded message and caller ID to conform to its debt collection purpose. It had alleged debtors’ addresses and directed VoApps to send messages only during permissible time of day, depending upon the physical location of the debtor. By the terms of the contract, VoApps acted as a “passive conduit for the distribution of content and information.” 

Yeah… this one was pretty obvious.

Indeed, this motion was borderline frivolous–and perhaps not even borderline–and I rarely say that.

What I find really fascinating is that a different RVM platform was found to be exempt from TCPA liability by Section 230 of the Communications Act so not sure why that issue wasn’t raised as part of Defendant’s motion.

C’est la vie.

This is a good data point on a couple of things:

1. Platforms should always try to position themselves as mere conduits to avoid findings that they are responsible for the conduct of callers using their services;
2. Callers who wish to treat their platforms as the “makers” of the call need to really place trust in those platforms and also have clear contract terms to that effect– and handing off a list of numbers with explicit instructions is going to sink your chances;
3. Ringless voicemail are covered by the TCPA as regulated technology and prerecorded calls–which means you need express written consent for marketing purposes and express consent for informational purposes to leverage these systems; and
4. Folks caught up in RVM cases should keep Section 230 in mind!