So I’ve been covering this (awful) argument that the plaintiff’s bar has been advancing that text messages automatically trigger the TCPA because they are pre-recorded voice calls.
The argument makes some sense–texts are prerecorded–until it makes no sense at all–texts are not voices.
But you can see why the Plaintiff’s bar would want to win this one–if they succeed then all texts become subject to the TCPA and not just those sent using an ATDS. And that would eliminate much of the hustle and bustle over Facebook.
Well the plaintiff’s bar isn’t fooling anyone with this one. We finally have our first ruling rejecting this argument and it goes pretty much the way you’d expect.
In Eggleston v. Reward Zone USA LLC, 2:20-cv-01027-SVW-KS, 2022 U.S. Dist. LEXIS 20928 (C.D. Cal. January 28, 2022) the Court granted a Defendant’s motion to dismiss holding that not only are text messages not prerecorded voice calls, texts are not actionable under the TCPA unless they are sent to phone numbers that are generated using an ROSNG.
On the ATDS piece the court specifically rejected the Plaintiff’s fn7 argument–i.e. that using an ROSNG to select numbers to be dialed triggers the statute. On that score the Court determined the “equipment must use a number generator to generate the phone numbers themselves.” The Court also flatly rejected the argument that “a program that merely uses a number generator to generate and select index numbers” meets the ATDS definition post-Facebook.
That’s a huge win in its own right, but the ruling gets even better.
On the prerecorded call piece the court does not hold back. Here’s the analysis:
Plaintiff’s interpretation is simply beyond the bounds of common sense. For one, the primary definition of “voice” in Webster’s dictionary is “sound produced by vertebrates by means of lungs, larynx, or syrinx; especially sound so produced by human beings.” Voice, Merriam-Webster’s Online Dictionary, accessed Jan. 27, 2022. “An instrument or medium of expression” is only the tertiary definition of “voice.” Id. Webster’s tertiary definition includes an example sentence: “the party became the voice of the workers,” illustrating that this usage of ‘voice” has an almost metaphorical or symbolic connotation. See id.
Now while this ruling is fantastic it is hardly surprising–in fact one of my best clients (you’re all my best clients) recently pointed out the same primary definition of the word “voice” in response to one of my earlier emails (here’s looking at you Dave.)
So there you go-another huge ATDS win and the first-in-the-nation ruling holding text messages are not prerecorded voice calls.
Remember, however, that texts still CAN be subject to the TCPA–and state law claims–if they are sent using certain regulated technology. Yes, even if the texts are not being sent to a number on the DNC list. So always seek counsel before starting any new outreach campaign!