The Court of Appeals for the Ninth Circuit has affirmed the dismissal of a Telephone Consumer Protection Act case, ruling that text messages sent to an individual are not considered “prerecorded messages” because they do not include auditory components. In a separate appeal in the same case, the Court also affirmed the dismissal of a claim that the technology used by the defendant was an automated telephone dialing system because it did not generate telephone numbers using a random or sequential number generator.
A copy of the prerecorded message ruling in Trim v. Reward Zone USA can be accessed by clicking here. A copy of the ATDS ruling can be accessed by clicking here.
The plaintiff received three messages from the defendant even though she was never a customer nor did she ever provide her cell phone number. She filed a class-action lawsuit, claiming the text messages violated the TCPA because they were allegedly sent using an ATDS and because they constituted prerecorded voice messages, because one definition of “voice” she found in a dictionary said it was “an instrument or medium of expression.”
Under the TCPA, calls made using an ATDS or an artificial or prerecorded voice are prohibited unless the caller has the express consent of the called party to make contact. Ultimately, the Ninth Circuit saw its job was to define “voice” under the TCPA. Back when the TCPA was enacted, the “ordinary” meaning of “voice” was a “sound formed in or emitted from the human larynx in speaking.” While admitting there is a symbolic connotation to the word “voice,” the Ninth Circuit noted that those definitions follow the literal ones. The plaintiff “fails to provide any evidence that Congress intended an ‘idiosyncratic definition,’ and we presume Congress intended to legislate the primary meaning of voice, which requires an audible component,” the Appeals Court wrote.
