Ninth Circuit Holds Text Messages Are Not Prerecorded Calls

Trim v Reward Zone USA LLC, No. 22-55517, 2023 WL 5025264 (9th Cir. August 8, 2023)

Plaintiff filed a putative class action, contending, in part, that three marketing text messages she received utilized prerecorded voices, therefore, the United States Supreme Court’s Decision in Facebook, Inc. v. Duguid, 141 S.Ct. 1163 (2021), regarding what constitutes an Automatic Telephone Dialing System, did not prohibit her from proceeding with her case. In advancing this argument, Plaintiff claimed that because the definition of “voice” in Meriam Webster’s dictionary is “an instrument or medium of expression,” the messages Plaintiff received, which were drafted before being sent, were “prerecorded voices.”

Rejecting this argument, the Court initially noted that the text of the TCPA prohibits certain calls using an “artificial or prerecorded voice,” and that it need not define the terms “artificial” or “prerecorded” because both terms are merely adjectives modifying the disputed term—“voice.” Citing numerous cannons of statutory construction, including that: (1) when the meaning of a statute is clear, the sole function of a court is to enforce it according to its terms; (2) traditional tools of statutory construction include that words are interpreted consistent with their ordinary meanings at the time the statute was enacted, (3) words of a statute must be read in context, and (4) inquiry must cease if the statutory language is unambiguous and the statutory scheme is coherent and consistent, the Court held 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.”

In reaching this conclusion, the Court noted that at the time the TCPA was enacted, the ordinary meaning of the term “voice” was a “‘[s]ound formed in or emitted from the human larynx in speaking.’” While the Court acknowledged Plaintiff’s argument that “voice” can be used symbolically, such as an “‘[u]tterance or expression,’” or “‘instrument or medium of expression,’” it also noted, “‘[t]hat a definition is broad enough to encompass a sense of a word does not establish that the word is ordinarily understood in that sense.’” The more symbolic definitions of the term are listed well after the primary ones in the dictionaries. And, the examples in the dictionaries illustrating a symbolic sense of “voice” that does not involve an audible component only invoke “inapplicable poetic or literary settings: ‘the courage which gave Voice to its creed,’ ‘hero-worship, which found voice in song’; and ‘the party [that] became the voice of the workers.’”

After exhausting traditional tools of statutory construction, the Court was not persuaded by and noted that it need not even consider Plaintiff’s remaining arguments because the statute was unambiguous.

A copy of the opinion can be viewed by clicking here.

Posted in: TCPA

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