TCPA TRIMMED DOWN: Ninth Circuit Court of Appeals Holds Text Messages Are Not Prerecorded Calls–But There is a Catch –

The World of the Telephone Consumer Protection Act
Huge huge TCPA case out of the Ninth Circuit yesterday–and FINALLY some good news for TCPA defendants. Unfortunately, however, there is a catch so stay with me until the end.
In Trim v. RewardsZone the Ninth Circuit Court of Appeals considered whether a text message triggered the TCPA’s “recorded voice” provision. This is a critical question because, if so, the TCPA’s regulated technology provisions would automatically apply to text messages–meaning a company sending a text would always need either express consent, or written express consent, depending on the nature of the text.
Under current federal law a text is only actionable if it is sent to a number on the national DNC list for marketing purposes, or if it is sent using an automated telephone dialing system (ATDS.) The Plaintiff in Trim argued that texts should be treated as prerecorded voice messages under the TCPA–which would mean any text would be come actionable under the statute.
A win for the Trim Plaintiffs would have had a massive impact on companies sand non-profits–like political campaigns– that use text messages without consent. But the Ninth Circuit rejected the Plaintiff’s approach.
Specifically the Court found the use of the word “voice” in the TCPA was not symbolic or metaphorical. Instead the Court turned to the dictionary and determined a VOICE literally has to be used to deliver a message before a text becomes actionable:
The ordinary meaning of “voice” when the TCPA was
enacted, see Perrin, 444 U.S. at 42, was a “[s]ound formed
in or emitted from the human larynx in speaking,” Voice
(def. 1a), Oxford English Dictionary (2d ed. 1989)); see also
Voice (def. 1a), Webster’s Ninth New Collegiate Dictionary
(1991) (“sound produced by vertebrates by means of lungs,
larynx, or syrinx”). Other definitions also show that the
ordinary meaning of voice relates only to audible sound. For
example, the primary definition of “vocalize” is “to give
voice to: UTTER; specif[ically]: SING.” Vocalize (def. 1),
Webster’s Ninth New Collegiate Dictionary.
And in the end the Court holds:
We hold that Congress clearly intended “voice” in 47 U.S.C. § 227(b)(1)(A) to encompass only audible sounds, because the ordinary meaning of voice and the statutory context of the TCPA establish that voice refers to an audible sound.
Except, hold on a second.
While this ruling is fantastic for folks using regular old SMS messages, there is a real cautionary point here. Many folks have begum using MMS messages and other forms of communication that may embed a voice for a video. I have been asked many times whether thee messages trigger the regulated technology provisions of the TCPA (227(b)) and I have told folks to be cautious but could not point to any caselaw. But now, unfortunately or fortunately, I can. Check this:
We hold that these text messages did not use prerecorded voices under the TCPA, because they did not include audible components.
Uh oh.
This provisions seems to suggest that although the “regular” text message at issue in Trim was not a prerecorded voice message, other messages that did include an “audible component” would trigger the statute.
That makes Trim a double edged sword for businesses. They need to be cautious when sending texts and other forms of messages that might include an audible notification and recognize the standard rules permitting texts may not be so generous when it comes to messages with sound or video files embedded or linked. SO be cautious!
But let’s end with the positive. Another bizarre theory by the Plaintiff’s bar has now bit the dust and we can all start a day a bit safer in TCPAWorld.
Chat soon.
The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.
“Infamous SERIAL VIOLATOR Reward Zone USA gets a lucky break via 9th circuit muff dive” Should have been your headline…
That the court relied on an outdated (and thus irrelevant dictionary use) to determine current legal ramifications is truly a sad day for the millions of RewardZone victims.
Look “We hold that Congress clearly intended “voice” in 47 U.S.C. § 227(b)(1)(A) to encompass only audible sounds, because the ordinary meaning of voice and the statutory context of the TCPA establish that voice refers to an audible sound” was born PRIOR to text technology; as they clearly stated: “The ordinary meaning of “voice” when the TCPA was enacted,…” was in 1991!!!!
Any free thinking human can grasp the concept that a text is by definition not capable of being an ‘audible voice’ IT’S A TEXT – DUH. However, it clearly is the textual representation of an audible voice via today’s tech. What is the result of PRMs? To leave the same message to multiple recipients utilizing technology. Hence, utilizing SMS/MMS means that while it’s minus the ‘AUDIBLE voice’ component, the same result is accomplished.
Clearly we need to update the laws to be relevant to todays standards of technological norms…
Oh, and for those of you unfamiliar with the defendant, this is who we’re dealing with here…even the state of Pennsylvania has brought suit (and won) against Fluent/RewardZone!
R.I.P. Pac12.
The Conference of Champions deserved better.
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