On August 8, 2023, the Ninth Circuit Court of Appeals issued a substantial win for Telephone Consumer Protection Act (TCPA) defendants in a case of first impression styled Trim v. Reward Zone.1
In the aftermath of Facebook, Inc. v. Duguid (in which the U.S. Supreme Court significantly narrowed the TCPA’s definition of what constitutes an Automatic Telephone Dialing System (ATDS)), plaintiffs have become increasingly creative in presenting TCPA claims. While many have focused on alleged “Do-Not-Call” violations and alleged violations of the new state “mini-TCPAs,” a few – including the plaintiff here – have argued that a text message qualifies as an artificial or prerecorded voice subject to 47 U.S.C. § 227(b)(1)(A).
In Trim, the plaintiff received a text message from Reward Zone stating:
“Hiya Lucine, you are a valuable customer. In these tough times, let us  reimburse [you] for your shopping needs.”2
Trim alleged that this text constituted a prerecorded voice message and, as she did not provide prior express written consent to receive prerecorded voice messages, therefore violated the TCPA. Arguing that the TCPA does not define an artificial or prerecorded voice, Trim relied on Meriam Webster's dictionary definition of voice – “an instrument or medium of expression” – to claim that the text message qualifies as a voice.3
The Ninth Circuit rejected this argument.
The Court noted that its first job is to determine whether congressional intent regarding the definition of voice is clear using “traditional tools of statutory construction.”4 If words can be interpreted consistent with their ordinary meaning, courts should not stray from that ordinary meaning by adopting an idiosyncratic definition, such as the one suggested by Trim.
When the TCPA was enacted, the ordinary meaning of voice was a “[s]ound formed in or emitted from the human larynx in speaking.”5 The Court did not find persuasive proof that Congress intended the meaning of voice to encompass a “metaphorical component such as medium of expression.”6 Hence, because the text message did not include an audible component, the Court held that the text was not a voice and did not trigger the regulated device provisions of the TCPA.
Trim also argued that FCC rules preclude a definition of voice that requires an audible component because the FCC has determined that a text is a call – i.e., if a text is a call, it must have a voice. The Court also rejected this argument, holding that if the statutory language is not ambiguous, the Court does not defer to the FCC’s interpretation.
As mentioned, the Supreme Court’s Facebook decision forced plaintiffs’ lawyers to get creative in presenting TCPA claims. In Trim, the Ninth Circuit has foreclosed, in its jurisdiction, this attempt to expand the definition of voice to include text messages. However, whether other jurisdictions will follow suit has yet to be seen. And, businesses engaging in text marketing must still take care to comply with the FCC’s Do-Not-Call regulations and the various mini-TCPAs that have been (and will be) enacted in reaction to the Duguid decision.
1 Trim v. Reward Zone USA LLC, 2023 WL 5025264 (9th Cir. 2023)
2 Id. at *1
3 Id. at *1
4 Id. at *3
5 Id. at *3
6 Id. at *3