Tuesday, August 15, 2023

FYI: 9th Cir Holds TCPA "Prerecorded Voice" Did Not Apply to Text Messages

The U.S. Court of Appeals for the Ninth Circuit recently affirmed a trial court's dismissal of a putative class action brought under the federal Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227.


In so ruling, the Ninth Circuit held that the text messages at issue did not use "prerecorded voices" under the TCPA because they did not include audible components.


A copy of the opinion is available at:  Link to Opinion


A consumer, as named plaintiff, sought to represent a class of consumers who received any unsolicited text message using an automatic telephone dialing system (ATDS) or an artificial or prerecorded voice from the defendant marketing company, which text message was not made for emergency purposes or with the recipient's prior express consent.


In the consumer's first cause of action, she alleged that the text messages were sent using an ATDS and, thus, violated the TCPA. In her second cause of action, she alleged that the text messages constituted "prerecorded voice messages" and, therefore, also violated the TCPA on that ground. To support this claim, the consumer argued that, because one definition of "voice" in Meriam Webster's dictionary is "an instrument or medium of expression," the automatic messages sent to the consumer (which were drafted before being sent), constituted "prerecorded voice[s]" as prohibited by 47 U.S.C. § 227(b)(1)(A).


As to the first cause of action, the trial court held that the consumer failed to plead the use of an ATDS. As to the second cause of action, the trial court determined that the text messages did not use voices and therefore did not violate the applicable section of the TCPA. The trial court then granted the consumer's motion to certify the above dismissals for immediate appeal to the Ninth Circuit.


Regarding the second cause of action, the Ninth Circuit held that Congress clearly intended "voice" in 47 U.S.C. § 227(b)(1)(A) to encompass only audible sounds, because, in the Court's view, the ordinary meaning of voice establishes that it refers to an audible sound. According to the Court, the ordinary meaning of "voice" when the TCPA was enacted in 1991 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).


Furthermore, the Ninth Circuit reasoned that the statutory context of the TCPA bolsters its determination that Congress did not intend the meaning of voice to include a metaphorical component. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000). The TCPA defines "caller identification information" as "information regarding the origination of[] a call made using a voice service or a text message sent using a text messaging service." 47 U.S.C. § 227(e)(8)(A)). The Court concluded that, if voice calls encompassed text messages, the inclusion of the term text message would be surplusage, and Congress would have written the statute in a manner contrary to a basic canon of statutory construction, that a statute should be interpreted "so as not to render one part inoperative." Mountain States Tel. & Tel. Co. v. Pueblo of Santa Ana, 472 U.S. 237, 249 (1985).


Moreover, the Ninth Circuit was not persuaded by the consumer's argument that the legislative history of the TCPA demonstrates that the artificial/prerecorded voice prohibitions hinge on whether the calls had a live agent on the other end who could respond to questions or frustration. The Court held that it did not need to consider this argument on the merits because it already determined that the statute is not ambiguous after exhausting "traditional tools of statutory construction." NLRB v. United Food & Com. Workers Union, Loc. 23, AFL-CIO, 484 U.S. 112, 122 (1987).


Accordingly, the Ninth Circuit affirmed the trial court's dismissal of the second cause of action and held that, because the ordinary meaning and statutory context of the TCPA show that the term "voice" in 47 U.S.C. § 227(b)(1)(A) excludes a symbolic definition, the marketing company's text messages to the consumer could not have violated the prohibition on "prerecorded voices."


Additionally, the Court stated that it would address the trial court's dismissal of the first cause of action in a separate, simultaneous memorandum.  In that unpublished ruling, the Ninth Circuit reiterated its holding in Borden v. eFinancial, LLC, 53 F.4th 1230 (9th Cir. 2022), that "a system constitutes an autodialer regulated by the TCPA only if it 'generate[s]and dial[s] random or sequential telephone numbers.' Id. at 1231". 


Because the named plaintiff conceded "that the subject dialing equipment did not generate telephone numbers using a random or sequential number generator," the Ninth Circuit held that the "text messages were not sent via use of an autodialer in violation of the TCPA."




Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 6th Floor
Chicago, Illinois 60602
Direct:  (312) 551-9320
Fax: (312) 284-4751

Mobile:  (312) 493-0874
Email: rwutscher@MauriceWutscher.com


Admitted to practice law in Illinois




Alabama   |   California   |   Florida   |   Illinois   |   Massachusetts   |   New Jersey   |   New York   |   Ohio   |   Pennsylvania   |   Tennessee   |   Texas   |   Washington, DC



NOTICE: We do not send unsolicited emails. If you received this email in error, or if you wish to be removed from our update distribution list, please simply reply to this email and state your intention. Thank you.

Our updates and webinar presentations are available on the internet, in searchable format, at:


Financial Services Law Updates




The Consumer Financial Services Blog