The Ninth Circuit recently rejected the argument that a text message qualifies as an “artificial or prerecorded voice” under the TCPA. See Trim v. Reward Zone USA LLC, 2023 WL 5025264, 2023 U.S. App. LEXIS 20445 (9th Cir. Aug. 8, 2023).
There, the plaintiff alleged that the defendant had violated the TCPA by sending text messages with promotional offers without her consent. Specifically, she alleged that the defendant had sent her a message stating: “Hiya Lucine, you are a valuable customer. In these tough times, let us [] reimburse [you] for your shopping needs.”
As you may recall, the TCPA prohibits making “any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using . . . an artificial or prerecorded voice . . . to any telephone number assigned to a [ ] cellular telephone service. . . .” 47 U.S.C. § 227(b)(1)(A)(iii).
To invoke that provision, the plaintiff argued that the texts were a “prerecorded voice message.” She based that reading on Merriam Webster’s dictionary, which defines “voice” as (among other things) “an instrument or medium of expression.”
Judge Wilson of the Central District of California rejected that argument, calling it “beyond the bounds of common sense.” Eggleston v. Reward Zone USA LLC, 2022 U.S. Dist. LEXIS 20928, *11 (C.D. Cal. Jan. 28, 2022). The plaintiff then appealed the dismissal of the case.
The Ninth Circuit affirmed. It reasoned that, when the TCPA was enacted, the ordinary meaning of “voice” was a “[s]ound formed in or emitted from the human larynx in speaking.” Contrary to the plaintiff’s arguments, the definition of “voice” did not include a “metaphorical component such as medium of expression.” The text message, which lacked a sound, was not a “voice.”
The Court also rejected the plaintiff’s theory that FCC rules require the Court to find that text messages are “voices.” The plaintiff argued that, because the FCC has said that a text message constitutes a “call” under the TCPA, a text message necessarily contains a “voice.” Without reaching the question of whether this was the intent of the FCC, the Court held that the statute was unambiguous, and the FCC’s interpretation would not be entitled to deference.
The Trim decision is just the latest example of the plaintiffs’ bar scrambling to fill the void left by the Supreme Court’s decision in Facebook, which confirmed that the statute’s autodialer definition should be interpreted narrowly. What the plaintiffs’ bar tries next is to be determined.
