Do Text Messages Fall Under TCPA Prerecorded Voices – The National Law Review

A recent decision of the Ninth Circuit Court of Appeals, Trim v. Reward Zone USA LLC, No. 22-55517, 2023 WL 5025264 (9th Cir. Aug. 8, 2023), affirmed a district court’s order granting a motion to dismiss a putative TCPA class action claim, and confirmed that text messages which do not include audible components are not “prerecorded voices” within the meaning of section 227(b)(1)(A) of the TCPA. 
Plaintiff Lucine Trim alleged a violation of the TCPA for receipt of at least three mass marketing text messages from Reward Zone which she contended utilized “prerecorded voices.” The TCPA makes it unlawful to “make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone service.” 47 U.S.C. § 227(b)(1)(A)(iii). The plaintiff in Trim did not allege, however, that the text messages she received included any audible component. Instead, she argued that the term “voice” should be given a broader, more symbolic meaning such as a “medium of expression.”  (Plaintiffs’ claim that the texts had been sent with an autodialer had separately been dismissed under the Supreme Court’s 2021 decision in Facebook v. Duiguid.) 
The court first determined that the term “voice” was clear using “traditional rules of statutory construction.” It noted that the ordinary meaning of the term “voice” when Congress passed the TCPA in 1991 was a “[s]ound formed in or emitted from the human larynx in speaking,” and that other definitions “also show that the ordinary meaning of voice relates only to audible sound.”  The more symbolic meaning for the term “voice” advocated by plaintiff – an “utterance or expression” or an “instrument or medium of expression” – were only applicable in a literary or poetic setting and were not the “ordinary” meaning of the term. 
The statutory context of the TCPA also confirmed the court’s conclusion that Congress did not intend to use the term “voice” in a metaphorical way suggested by plaintiff. The Court noted the statute defines “caller identification information” as “information regarding the origination of[] a call made using a voice service or a text message sent using a text messaging service.” 47 U.S.C. § 227(e)(8)(A)). If, as plaintiff urged, voice calls encompassed text messages, then the inclusion of the term text message in the definition of “caller identification information” would be surplusage, and Congress would have written the statute in a manner contrary to a basic canon of statutory construction, that a statute should be interpreted so as not to render one part inoperative.  Thought of another way, if the court accepted the plaintiff’s reasoning, essentially all text messages would be deemed pre-recorded or artificial voice calls, bringing any text sent in the absence of consent or an emergency purpose within the ambit of the TCPA’s wireless call prohibition, regardless of whether they were sent with an autodialier as defined under Facebook.
Thus, the Ninth Circuit concluded that because the “ordinary meaning and statutory context show the term ‘voice’ in 47 U.S.C. § 227(b)(1)(A) clearly excludes a symbolic definition, Reward Zone’s text messages to Trim could not have violated the prohibition on ‘prerecorded voices’ in that section, and we affirm the district court’s grant of Reward Zone’s motion to dismiss” that claim.
In an interesting wrinkle, the court pointed out that its ruling is limited to standard “text” messages. In note 4 of its decision, the court noted that a text message could come via MMS (Multimedia Messaging Service), which could include audio sound with an artificial or prerecorded voice, leaving open the question without deciding, whether there could be exposure under section 227(b)(1)(A) for transmitting MMS messages that include audio components, absent consent from the texted party or an emergency purpose. 
About this Author
Meg is a detailed-oriented attorney with more than 12 years of experience. She has litigated a number of cases including personal injury, premises liability, medical malpractice, breach of contract, business disputes and products liability. In addition to her extensive experience in the courtroom, Meg has negotiated numerous out-of-court resolutions through arbitration and mediation as well as pre-trial settlements. She is well-versed in managing all aspects of cases from inception to completion, including developing and evolving a case strategy, discovery, drafting…
Tomio Narita is a trial attorney who focuses his practice on defending class actions and high-risk cases filed against members of the consumer financial services industry. He has more than three decades of experience representing creditors, national banks, debt buyers, finance companies, alternative lenders, collection agencies, collection law firms, and mortgage companies in cases arising under a wide range of consumer protection statutes, including the Fair Debt Collection Practices Act (FDCPA), the Telephone Consumer Protection Act (TCPA), the Fair Credit Reporting Act (FCRA), the Truth…
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