Sixth Circuit: One Ringless Voicemail Is Enough for Standing to Sue Under the TCPA

The bottom line: the standing question is whether the harm is the same kind the common law recognized, not whether it was severe. A silent voicemail qualifies.

Here is what happened

Matthew Dickson alleged that Direct Energy, LP left numerous ringless voicemails (RVMs) on his cellular phone in 2017, containing marketing for the company's services. RVM technology places a message directly into a recipient's voicemail inbox, without ringing the phone. One message, on November 3, 2017, identified the caller as "Nancy Brown with Direct Energy." Dickson said he never consented.

Dickson testified that he received eleven RVMs. Direct Energy's expert concluded only the November 3 message came from Direct Energy. The district court found Dickson received one RVM and dismissed for lack of standing, noting he could not recall what he was doing, was not charged and spent little time on the message.

The law

The TCPA bars calls using an artificial or prerecorded voice to cell phones without prior express consent. 47 U.S.C. § 227(b)(1)(A)(iii). Whether an RVM is a "call" was not at issue on appeal, but the court noted that the Federal Communications Commission (FCC) ruled in November 2022 that it is.

Under Spokeo, Inc. v. Robins and TransUnion LLC v. Ramirez, an intangible harm is concrete if it has a close relationship to a harm traditionally recognized by courts, with Congress's judgment also relevant.

The decision

Judge Davis wrote for a panel that included Judges Batchelder and Stranch.

1. Kind, not degree. Following then-Judge Barrett's opinion in Gadelhak v. AT&T Services, Inc., the court held that an unwanted RVM resembles the common law tort of intrusion upon seclusion. It does not matter that the tort itself required more persistent intrusions.
2. Cell phones are private. The court rejected the argument that Dickson needed to be in a private place. Cell phones are "by their nature, private."
3. Silence does not matter. Direct Energy argued the RVM never buzzed or rang. The court said that goes to degree, not kind.
4. Congress's judgment. Unsolicited prerecorded marketing is exactly what Congress targeted.
5. Split with the Eleventh Circuit. The court declined to follow Salcedo v. Hanna and Grigorian v. FCA US LLC, which found single texts or RVMs insufficient.

Because one RVM was enough, the court did not decide whether Dickson received one or eleven.

Why it matters

The circuit split on single-message standing affects where TCPA cases can be filed and how classes are defined. The Eleventh Circuit later revisited its approach en banc in Drazen v. Pinto. In the Sixth Circuit, a defendant cannot defeat standing by arguing that one silent voicemail was too trivial.

What this means for you

1. Treat ringless voicemail as a prerecorded call that requires prior express consent, and written consent for marketing.
2. Do not assume that a low-volume, silent campaign is a low-risk campaign.
3. Keep consent records tied to each number and each campaign.
4. Consider auditing any vendor that provides "voicemail drops."

A message that never rings can still cost you.

Read the Sixth Circuit's opinion in Dickson v. Direct Energy.