In Trim v. Reward Zone USA, LLC the Ninth Circuit Court of Appeals ruled that text messages are not “prerecorded voice messages” for purposes of the TCPA’s prohibition against using “an artificial or prerecorded voice” to make non-emergency calls to cell phone numbers without the called party’s consent. Sounds like a helpful ruling, but what does it actually mean?
The Law
Text messages sent for marketing purposes have long been considered “calls” that trigger TCPA liability, a position that the FCC affirmed in its 2015 Omnibus Declaratory Ruling and recently codified in a recent Notice of Proposed Rulemaking. And, the TCPA includes a private right of action to pursue two (2) distinct types of violations that can be triggered by a call:
DNC Violations: These are violations of the TCPA section prohibiting calls to any number listed on the National DNC Registry, as detailed in §227(c)(5).
ATDS/Robocall Violations: These are violations of the sections of the TCPA that restrict the use of automated telephone equipment and artificial or prerecorded voices. Section 227(b)(1)(A)(iii) prohibits using an ATDS to call a number assigned to a cellular service, and (§227(b)(B) prohibits initiating any phone call to a landline using an artificial or pre-recorded voice, absent prior express written consent.
The Case
In Trim v. Reward Zone, the plaintiff sued after allegedly receiving three unsolicited text messages from the defendant directing her to its website. The plaintiff was never a Reward Zone customer and never provided it with her cell phone number, which was not on the National DNC Registry.
Her class action lawsuit included two distinct causes of action alleging ATDS/Robocall violations described above. One cause of action alleged that the messages were sent using an automatic telephone dialing system (ATDS), and the other alleged that the texts were the legal equivalent of “prerecorded voice messages” for the purposes of TCPA liability.
This was a novel argument, and a shaky one at that. When lawyers present legal arguments, they cite authority. They lace their representations of what the law is and how it applies to a given situation with references to statutes, regulations, court rules, and prior appellate decisions they believe to be pertinent and supporting. Because this was an argument that had no legal precedent, the plaintiff supported it by providing a dictionary definition of “voice,” which defined the term as “an instrument or medium of expression.”
Establishing Precedent
Why did the plaintiff’s attorney include the novel claim that a text message is the same as a prerecorded voice, when he already had another cause of action based on the ATDS allegation? Because he wanted to make some law. If the district court agreed with this novel argument, it could have served as a legal precedent for deciding subsequent cases involving identical or similar facts in the same court and could have helped to convince judges in other courts as well.
As it happened, the district court dismissed the Complaint, ruling that the plaintiff failed to plead the use of an ATDS, and that text messages do not use voices and therefore do not violate the applicable section of the TCPA.
While this seemed to be a solid loss for the plaintiff, it was a golden opportunity for her attorneys, who subsequently filed an unopposed motion to certify for appeal the two causes of action to the Ninth Circuit Court of Appeals. If they could convince the Ninth Circuit panel to rule that a text is the legal equivalent of a prerecorded call under the TCPA, the precedent that it set would have been far more authoritative and impactful than the ruling of a single district court. It would have been the law of the land in each of the nine states that comprise the Ninth Circuit and would have influenced other circuit courts as well. Fortunately, that wasn’t how things played out.
The Ninth Circuit Ruling
In deciding the plaintiff’s ATDS cause of action, the Ninth Circuit panel cited a 2022 Ninth Circuit decision that held that a system constitutes an ATDS under the TCPA only if it generates and dials random or sequential numbers. Because the plaintiff conceded that the dialing equipment used to send the defendant’s text messages did not use a random or sequential number generator, the panel ruled that the messages were not sent using an ATDS.
As to the prerecorded voice cause of action, the Court held that Congress clearly intended “voice” in the relevant TCPA prohibition “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.” The panel also found that because Congress used the term “voice” elsewhere in the TCPA “in the standard way,” “the context of the statute bolsters that Congress did not understand the meaning of voice to include a metaphorical component such as medium of expression.”
The Practical Result
The practical result of the Trim v. Reward Zone ruling is the legal status quo. Unless the sender has prior express written consent, marketing texts violate the TCPA when sent to a number on the National DNC Registry, and also violate the TCPA when sent to any cellular number if the sender used an ATDS. In other words, the marketing world dodged a bullet.
