On August 8, 2023, the United States Court of Appeals for the Ninth Circuit issued a published opinion holding that conventional text messages do not amount to “artificial or prerecorded voice” calls under the Telephone Consumer Protection Act of 1991 (TCPA). In Trim v. Reward Zone USA LLC, the court rejected a plaintiff’s unusual argument that “voice” should be considered as “an instrument or medium of expression,” and that such a definition includes text messages. This distinction is vital, because the use of an artificial or pre-recorded voice triggers consent requirements and potential statutory damages under the TCPA. In other words, if a text message amounts to the use of an artificial or pre-recorded voice, the TCPA’s consent rules would apply to every such message.
Among other things, the TCPA prohibits making calls or sending texts to mobile numbers using either (i) an automatic telephone dialing system, (ii) a pre-recorded voice or (iii) an artificial voice, unless the caller has prior express consent (and prior express written consent for calls and texts that are telemarketing under TCPA). As businesses increase their use of automated text messages to communicate with their customers, employees and patients, aggressive plaintiffs have tried to cash in by pursuing TCPA class actions arising from such uses of text messages.
Recent case law from the Supreme Court has substantially narrowed the categories of technology that count as an automatic telephone dialing system, making it harder for plaintiffs to win TCPA cases. In response, the class-action plaintiffs in Trim v. Reward Zone argued that because a text message is “an instrument or medium of expression,” it constitutes a “prerecorded voice” under the TCPA—and thus the consent requirement applies even without the use of an automatic telephone dialing system.
Fortunately for callers, the Ninth Circuit rejected this expansive interpretation. The court held that Congress “clearly intended ‘voice’… to encompass only audible sounds,” based on the ordinary definition of the word at the time of the TCPA’s passage in 1991. The court wrote that it could not “embrace an ‘idiosyncratic definition’” of a statutory term without strong proof of congressional intent. The court further explained that the TCPA elsewhere makes a reference to “a voice service or a text message,” a superfluous sentence if Congress intended the definition of “voice” to include text messages.
The court also rejected the plaintiff’s theory that Federal Communications Commission (FCC) rules required a finding that text messages are “voices.” The FCC has determined that a text message counts as a call under the TCPA, and the plaintiffs argued that the FCC’s interpretation of the definition of “call” must also mean that a text message contains a “voice.” Without reaching the question whether this is a fair description of the FCC’s ruling (and we submit that it is not), the court did not reach the issue, holding that it would not defer to the FCC’s interpretation because the statute is unambiguous.
The Ninth Circuit’s common-sense decision affirms the logic of recent district-court decisions that have similarly held that the “voice” restriction in the TCPA does not extend to text messages.
While helpful, this ruling does not eliminate TCPA risk for large-scale text messaging campaigns. McDermott’s TCPA team is available to answer your questions about strategies to manage and mitigate TCPA risk.
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