The complaint for this class action alleges that yet another company has violated the Telephone Consumer Protection Act (TCPA). The identity of that company is a surprise: It’s FCA US, LLC, or Fiat Chrysler Automobiles US, LLC, one of the Big Three auto makers. There was a surprise for FCA US as well: One of its allegedly illegal calls apparently went to a budding lawyer.
The class for this action is all persons in the US who, between February 14, 2015 and February 14, 2019, to whose cell phones were sent a prerecorded message, from FCA US through Mudd, Inc., advertising the Chrysler Pacifica Hybrid.
The type of call at issue in this complaint is the so-called “ringless voicemail”—a kind of electronic voicemail that goes directly from the sender to the recipient’s voicemail box. It is not in fact ringless, since all cell phones alert their owners when a voicemail arrives. However, it was initially regarded by some companies as a way to possibly circumvent the TCPA.
The TCPA attempts to protect consumers from unwanted telemarketing. Cell phones get special mention in TCPA regulations, since most cell phone owners pay for incoming as well as outgoing calls. Telemarketing thus is an expense as well as a nuisance to cell phone owners.
Under the TCPA, advertisers cannot place calls to consumer cell phones, using automatic dialing systems or artificial or prerecorded voices, unless they have obtained the consumers’ prior express written consent to receive such e-mails.
When ringless voicemails were first went into use, some companies wanted to believe that they did not fall under the definition of “calls” covered by the TCPA. However, the Federal Communications Commission (FCC), which creates regulations for the TCPA, said otherwise: “Ringless voicemails are prerecorded calls within the meaning of the TCPA.” It said that the claim that the voicemail bypasses the cell phone was a “distinction without a difference.”
On or around January 17, 2018, FCA US transmitted a ringless voicemail to plaintiff Mariam Grigorian’s cell phone voicemail box. The message began, “On behalf of Chrysler brand headquarters with some exciting information about the new Chrysler Pacifica Hybrid during Chrysler’s summer clearance event. Alternative fuel vehicle owners are eligible to receive an additional $1,000 bonus cash above and beyond all current manufacturer and dealer incentives.”
Unfortunately for Chrysler, the voicemail came in while Grigorian was studying for the Florida Bar exam.
The complaint alleges both violation of the TCPA as well as knowing and willful violation of the TCPA.