On August 8, a unanimous panel of the Ninth Circuit issued a decision affirming a district court’s partial dismissal judgment entered in Trim v. Reward Zone USA LLC, holding that text messages did not use prerecorded voices under the Telephone Consumer Protection Act (TCPA) because they did not include audible components.

In Reward Zone, the plaintiff brought a class action against the defendant alleging, in part, that she received at least three mass marketing text messages which utilized “prerecorded voice[s]” in violation of TCPA, 47 U.S.C. § 227. The first text message stated: “Hiya Lucine, you are a valuable customer. In these tough times, let us [] reimburse [you] for your shopping needs.” The text then provided a link to the defendant’s promotional website. The plaintiff was never a customer of the defendant and never provided her cell number to it or its lead vendor. The plaintiff argued that, because one definition of “voice” in Meriam Webster’s dictionary is “an instrument or medium of expression,” the automatic messages sent to her (which were drafted before being sent), constituted “prerecorded voice[s].” The district court granted the defendant’s motion to dismiss as to this count. The plaintiff then filed an unopposed motion to certify the issue for appeal, which the district court granted.

Under the TCPA it is unlawful to “make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone service.” The Ninth Circuit found 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.”

The plaintiff also argued that binding Federal Communications Commission (FCC) rules preclude a finding that the definition of voice requires an audible component, because the Ninth Circuit has deferred to the FCC’s interpretation that a text message is a call under the TCPA. Thus, because the FCC has determined that a text message is a call, it must have a voice. The court of appeals dismissed this argument finding, if a statute “is unambiguous, we do not defer to the agency’s interpretation.”

Notably, in a separate appeal as to the first cause of action, the court of appeals, relying on its decision in Borden v. eFinancial, LLC, summarily affirmed the dismissal of the plaintiff’s claim that the technology used by the defendant was an automated telephone dialing system (ATDS) because it did not generate telephone numbers using a random or sequential number generator.