CASES OF NOTE

Ninth Circuit Holds Text Messages are Not “Prerecorded Voices” for TCPA Purposes

In a class action brought by Plaintiff Lucine Trim against Defendant Reward Zone USA, LLC, the Ninth Circuit affirmed the District Court’s dismissal of Plaintiff’s cause of action that alleged a violation of the TCPA for mass marketing text messages received from Defendant premised upon the theory that such messages used a “prerecorded voice,” in violation of 47 U.S.C. § 227(b)(1)(A). That section of the TCPA makes it unlawful, with some exceptions, to “make any call . . . 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 ultimately held that a text message was not a “voice,” and therefore could not violate this section.

Analyzing the statutory text, the Ninth Circuit determined that Congress clearly intended “voice” to encompass only “audible sounds.” In so determining, the Court looked to the dictionary definition of “voice” when the TCPA was first enacted, and held that Congress did not intend there to be a “metaphorical component” of the word because the remainder of the statute uses the word “voice” in the standard way. According to the Court, if “voice calls” encompassed text messages, then the mention of “text messages” in the definition of “caller identification information” would be superfluous.

In sum, the Ninth Circuit held that the term “voice” in 47 U.S.C. § 227 (b)(1)(A) excludes test messages, and affirmed the dismissal of Plaintiff’s claim under that section of the TCPA.

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

TCPA Claim Based on Unsolicited Free Seminar Invitations Dismissed Despite FCC Guidance to the Contrary

The Seventh Circuit affirmed dismissal of a TCPA claim where Plaintiff did not show that Defendant’s faxes offering free dinner programs were advertisements promoting “commercial” property, goods, or services.

Defendant Elanco Animal Health, an animal health products and services company, sent Plaintiff Ambassador Animal Hospital two unsolicited invitations to free dinner programs via fax. “Unsolicited advertisements,” which are prohibited under the TCPA, are defined as “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission.” The question for the Court was whether these invitations constituted “unsolicited advertisements,” i.e. whether the faxes “indicate, directly or indirectly, to a reasonable recipient that the ...company was promoting or selling some good, service, or property.”

The invitations contained only the titles of the presentations, names of presenters, and indications that both programs had been approved for continuing education credits, without mention of any Elanco products or services for sale. Though the invitation also included the trademarked “Elanco” logo, the Court held that this fell short of amounting to a “promotional aspect” that “alluded to the commercial availability or quality of Elanco's products,” as the statutory definition requires.

The Court also notably rejected Plaintiff's reliance on the FCC's guidance for the notion that the invitations constituted a “pretext” to an advertisement, in violation of the TCPA. Plaintiff cited to the FCC’s statement in In the Matter of Rules & Reguls. Implementing the Tel. Consumer Prot. Act of 1991, Junk Fax Prevention Act of 2005: “in many instances, free seminars serve as a pretext to advertise commercial products and services.” 21 FCC Rcd. 3787 (April 6, 2006). While the Court declined to decide whether the 2006 Order was interpretive guidance or a legislative rule, it did not give the pretext provision deference because the Court determined that the Order conflicted with the statutory text.

The Court ultimately found that “Elanco's faxes did not contain the promotional quality necessary for an advertisement,” even if they promoted goodwill for Elanco and “helped the company manage its brand and image.” The Court therefore affirmed dismissal the Plaintiff’s claims with prejudice.

Ambassador Animal Hosp., Ltd. v. Elanco Animal Health Inc., 2023 U.S. App. LEXIS 18809, __ F.4th __, 2023 WL 4699507 (July 24, 2023).

Plaintiff’s Employee had Authority to Consent, Leading to Dismissal of TCPA Claim

The Southern District of Alabama dismissed a TCPA claim based on the Court’s finding that the Plaintiff’s employee granted prior express consent on behalf of the Plaintiff to receive advertising facsimiles.

Defendant EzriRx, LLC, a pharmaceutical marketplace that connects wholesalers and pharmacies, obtained the fax numbers for Plaintiff, Boone’s Pharmacy, Inc., and would-be class members from a national directory for prescription drug programs. Defendant allegedly then, though a third party, contacted these entities to confirm the fax numbers and obtain ‘consent’ to fax advertisements. In the phone conversation with Plaintiff, the caller stated that they were calling on behalf of EzriRx “to confirm [Plaintiff’s] fax number to be able to send [Plaintiff] a marketing material.” In response, the employee of the pharmacy who answered the phone call confirmed the fax number and provided her name to the caller. Defendant then sent Plaintiff two advertising faxes, prompting Plaintiff to file a TCPA claim on behalf of itself and others similarly situated.

At issue was whether the Defendant, through this phone conversation, obtained requisite consent under the TCPA to send the faxes. To make this determination, the Court had to decide whether the employee had authority to consent on behalf of the Plaintiff.

Plaintiff asserted that the employee did not have authority to consent to receive ‘junk faxes,’ rendering Defendant’s fax transmittals unsolicited. The Court found a lack of factual support for the Plaintiff’s notion that the employee was acting outside of her authority to answer communications on behalf of the pharmacy and to “confirm the pharmacy’s fax number, which inevitably invites the receipt of a fax.” Rather, such an action was within the “usual and ordinary course” of her employment. Based on this, and the substance of the phone call, the Court held that the Defendant obtained adequate consent under the TCPA to send the two faxes. The Court therefore held that the Plaintiff did not state a plausible cause of action because Plaintiff gave its prior express permission to receive the subject faxes, and granted Defendant’s motion to dismiss.

Boone's Pharmacy, Inc. v. EzriRx, LLC, No. CV 22-00375-JB-N, 2023 WL 4874785 (S.D. Ala. July 31, 2023).

District Court Dismisses TCPA Claims for Failure to Show Use of ATDS, Origin of Calls

The District of Maryland recently dismissed a TCPA claim for a myriad of insufficiencies in Plaintiff’s allegations. Plaintiff Beaufort Nickson brought TCPA claims against Defendant Protect My Car (“PMC”) for five calls allegedly placed to him by PMC, claiming PMC both used an “automatic telephone dialing system” (“ATDS”) and called his number despite it being on the national do-not-call registry (“DNC”). The Court dismissed claims relating to all five calls.

For three of the calls, Plaintiff did not adequately allege that PMC was the entity that initiated the calls. Plaintiff alleged that he answered the phone, but none of the representatives he spoke to identified themselves as being affiliated with PMC. Despite the fact that all five calls came from the same number, and that it can be “reasonably inferred” that calls from same number are from the same caller, the Court held Plaintiff’s allegations that the calls came from PMC to be conclusory. Further, the Court refused to credit Plaintiff’s own conclusory notes taken during the calls.

The Court also dismissed allegations of the use of an ATDS for all five calls. Notably, the Court held that Plaintiff’s allegations “negate[d], rather than support[ed]” the use of an ATDS. For each call, Plaintiff alleged that he spoke to a live person, which contradicted his claim that they were made using an automated system. Plaintiff also alleged that PMC obtained his number through a data breach, which made it “implausible” to infer that PMC made the calls using a device that randomly or sequentially produces a telephone number.

Finally, the Court dismissed Plaintiff’s claim that PMC called him in violation of his registration on the national DNC list. In order to allege such a violation, Plaintiff must show that the Defendant placed more than one “telephone solicitation” to their number within a twelve-month period. As stated above, Plaintiff alleged only two calls by PMC. For one of those two calls, Plaintiff alleged that he and the live representative spoke only concerning PMC’s location and calling number. They did not discuss insurance coverage, savings, or otherwise “encourage the purchase or rental of, or investment in, property, goods, or services.” The call was therefore not a “telephone solicitation.” Having alleged only one “telephone solicitation” from PMC, Plaintiff’s claim relating to violations of the DNC registry was dismissed.

Nickson v. Advanced Mktg. & Processing, Inc., No. CV DLB-22-2203, 2023 WL 4932879 (D. Md. Aug. 2, 2023).