A unanimous panel of the U.S. Court of Appeals for the Ninth Circuit has ruled that text messages are not “prerecorded voice messages” for purposes of the Telephone Consumer Protection Act’s (TCPA) prohibition on using “an artificial or prerecorded voice” to make non-emergency calls to cell phone numbers without the called party’s consent.

In Trim v. Reward Zone USA LLC, the plaintiff received three text messages from the defendant directing her to a promotional website where she could complete “deals” to claim prizes.  The plaintiff was never a customer of the defendant and never provided her cell number to the defendant or its lead vendor.  She filed a class action lawsuit containing two TCPA causes of action.  One cause of action alleged that the defendant violated the TCPA because the messages were sent using an automatic telephone dialing system (ATDS).  The other cause of action alleged that the text messages violated the TCPA because they constituted “prerecorded voice messages.”  To support her second cause of action, the plaintiff argued that one definition of “voice” in Meriam Webster’s dictionary is “an instrument or medium of expression.”

The district court dismissed the plaintiff’s third amended complaint.  As to the first cause of action, the district court held that the plaintiff failed to plead the use of an ATDS.  As to the second cause of action, the district court held that the text messages did not use voices and therefore did not violate the applicable section of the TCPA.  The plaintiff subsequently filed an unopposed motion to certify for appeal the two causes of action.  The district court granted the motion and entered partial judgment for the defendant on the two TCPA claims.  The plaintiff’s appeal to the Ninth Circuit followed.

With regard to the plaintiff’s first TCPA cause of action, the Ninth Circuit panel cited a 2022 Ninth Circuit decision that held that a system constitutes an ATDS under the TCPA only if it generates and dials random or sequential numbers.  Because the plaintiff conceded that the dialing equipment used to send the defendant’s text messages did not generate telephone numbers using a random or sequential number generator, the panel ruled that the defendant’s text messages were not sent using an ATDS in violation of the TCPA.

With regard to the plaintiff’s second TCPA cause of action, the Ninth Circuit panel held that Congress clearly intended “voice” in the relevant TCPA prohibition “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 panel first looked at various definitions and concluded that they showed “that the ordinary meaning of voice relates only to audible sound.”  The panel found that the plaintiff had failed to provide any evidence that Congress intended an “idiosyncratic definition” and stated that “we presume Congress intended to legislate the primary meeting of voice which requires an audible component.” The panel also found that because Congress used the term “voice” elsewhere in the TCPA “in the standard way,” “the context of the statute bolsters that Congress did not understand the meaning of voice to include a metaphorical component such as medium of expression.”

The plaintiff also argued that FCC rules precluded a definition of voice that requires an audible component because the Ninth Circuit had deferred to the FCC’s interpretation that a text message is a “call” under the TCPA.  According to the plaintiff, because the FCC has determined that a text message is a call, a text message must have a “voice.”  In rejecting this argument, the panel observed that if a statute is unambiguous, the court does not defer to the agency’s interpretation. The panel noted that in the decisions cited by the plaintiff in support of her argument, the Ninth Circuit deferred to FCC reports and orders only after finding ambiguity in the term “call.”  The panel also noted that because the FCC has distinguished between “voice calls” and “text messages,” even if they deferred to the FCC because the term voice were ambiguous, it would support the panel’s interpretation. 

Accordingly, the panel affirmed the district court’s dismissal of both of the plaintiff’s TCPA causes of action.

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