Text Messages Do Not Include Artificial Or Prerecorded Voices For TCPA Purposes
A federal appellate court has held that, under the Telephone Consumer Protection Act (“TCPA”), text messages don’t contain artificial or prerecorded voices.
The case is Trim v. Reward Zone USA LLC. In Trim,1 the Ninth Circuit Court of Appeals held that text messages do not contain artificial or prerecorded voices. Its holding arose from the fact that text messages have no sound. Therefore, the TCPA’s prohibition on calls that use “artificial or prerecorded voice,” under 47 U.S.C. § 227(b)(1), does not apply to text messages.
If this conclusion seems rather obvious, it is. But the TCPA plaintiffs’ bar had to get “creative” (read: unreasonable) in an attempt to resurrect text messages claim. This was because, in 2021, the Supreme Court (correctly) interpreted the TCPA’s autodialer provision in a way that severely curtailed those types of TCPA claims.
One of these “creative” avenues was to argue that text messages contain a “prerecorded voice” because they were, well, prerecorded. Plaintiffs, by using this argument, avoided the audodailer issue. The trial courts unanimously rejected this theory because a prerecorded message alone does not violate the TCPA. The message must contain a “voice,” as that is the noun Congress chose to follow the term “prerecorded” (an adjective). But, until Trim, we only had trial-level decisions.
Background:
The TCPA, generally prohibits calls to residential and cellular lines that use “an artificial or prerecorded voice” without the called party’s consent.2 This prohibition is not limited to just telemarketing calls (informational calls with artificial/prerecorded voice content can be made with a lower level of consent).
It seemed apparent that this TCPA prohibition did not apply to text messages. This was because the term “voice” implies some type of sound, and a text message does not contain sound. Unsurprisingly, that didn’t stop plaintiffs from trying to argue that a text message contained or constituted a “voice.” Now a circuit court has issued a holding stating the obvious. Unfortunately, this decision presumably won’t stop plaintiffs in other circuits from continuing to argue that a text message contains or constitutes a ‘voice.” At least defendants now have strong persuasive authority to rebut that argument.
Important caveats to this holding:
While this is good news for telemarketers, there are two things to keep in mind. First, 47 U.S.C. § 227(b)(1)(A) still prohibits text messages that are sent using an “automatic telephone dialing system.” So either get consent, or don’t do that (the CTIA expects you to have consent anyway, of course).
The second is that the Ninth Circuit, in a footnote, recognized the possibility that a text could include an artificial or prerecorded voice.3 A Multimedia Messaging Service (“MMS”) text has such capabilities. Therefore, the Ninth Circuit’s ruling leaves open the possibility that 47 U.S.C. § 227(b)(1) prohibits sending MMS texts containing embedded sounds without first securing the appropriate level of consent.
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