TCPA TRIMMED DOWN: Ninth Circuit Court of Appeals Holds Text Messages Are Not Prerecorded Calls–But There is a Catch

Huge huge TCPA case out of the Ninth Circuit yesterday–and FINALLY some good news for TCPA defendants. Unfortunately, however, there is a catch so stay with me until the end.

In Trim v. RewardsZone the Ninth Circuit Court of Appeals considered whether a text message triggered the TCPA’s “recorded voice” provision. This is a critical question because, if so, the TCPA’s regulated technology provisions would automatically apply to text messages–meaning a company sending a text would always need either express consent, or written express consent, depending on the nature of the text.

Under current federal law a text is only actionable if it is sent to a number on the national DNC list for marketing purposes, or if it is sent using an automated telephone dialing system (ATDS.) The Plaintiff in Trim argued that texts should be treated as prerecorded voice messages under the TCPA–which would mean any text would be come actionable under the statute.

A win for the Trim Plaintiffs would have had a massive impact on companies sand non-profits–like political campaigns– that use text messages without consent. But the Ninth Circuit rejected the Plaintiff’s approach.

Specifically the Court found the use of the word “voice” in the TCPA was not symbolic or metaphorical. Instead the Court turned to the dictionary and determined a VOICE literally has to be used to deliver a message before a text becomes actionable:

The ordinary meaning of “voice” when the TCPA was
enacted, see Perrin, 444 U.S. at 42, was a “[s]ound formed
in or emitted from the human larynx in speaking,” Voice
(def. 1a), Oxford English Dictionary (2d ed. 1989)); see also
Voice (def. 1a), Webster’s Ninth New Collegiate Dictionary
(1991) (“sound produced by vertebrates by means of lungs,
larynx, or syrinx”). Other definitions also show that the
ordinary meaning of voice relates only to audible sound. For
example, the primary definition of “vocalize” is “to give
voice to: UTTER; specif[ically]: SING.” Vocalize (def. 1),
Webster’s Ninth New Collegiate Dictionary.

And in the end the Court holds:

We hold that Congress clearly intended “voice” in 47 U.S.C. § 227(b)(1)(A) 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.


Except, hold on a second.

While this ruling is fantastic for folks using regular old SMS messages, there is a real cautionary point here. Many folks have begum using MMS messages and other forms of communication that may embed a voice for a video. I have been asked many times whether thee messages trigger the regulated technology provisions of the TCPA (227(b)) and I have told folks to be cautious but could not point to any caselaw. But now, unfortunately or fortunately, I can. Check this:

We hold that these text messages did not use prerecorded voices under the TCPA, because they did not include audible components.

Uh oh.

This provisions seems to suggest that although the “regular” text message at issue in Trim was not a prerecorded voice message, other messages that did include an “audible component” would trigger the statute.

That makes Trim a double edged sword for businesses. They need to be cautious when sending texts and other forms of messages that might include an audible notification and recognize the standard rules permitting texts may not be so generous when it comes to messages with sound or video files embedded or linked. SO be cautious!

But let’s end with the positive. Another bizarre theory by the Plaintiff’s bar has now bit the dust and we can all start a day a bit safer in TCPAWorld.

Chat soon.




  1. “Infamous SERIAL VIOLATOR Reward Zone USA gets a lucky break via 9th circuit muff dive” Should have been your headline…

    That the court relied on an outdated (and thus irrelevant dictionary use) to determine current legal ramifications is truly a sad day for the millions of RewardZone victims.

    Look “We hold that Congress clearly intended “voice” in 47 U.S.C. § 227(b)(1)(A) 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” was born PRIOR to text technology; as they clearly stated: “The ordinary meaning of “voice” when the TCPA was enacted,…” was in 1991!!!!

    Any free thinking human can grasp the concept that a text is by definition not capable of being an ‘audible voice’ IT’S A TEXT – DUH. However, it clearly is the textual representation of an audible voice via today’s tech. What is the result of PRMs? To leave the same message to multiple recipients utilizing technology. Hence, utilizing SMS/MMS means that while it’s minus the ‘AUDIBLE voice’ component, the same result is accomplished.

    Clearly we need to update the laws to be relevant to todays standards of technological norms…

    Oh, and for those of you unfamiliar with the defendant, this is who we’re dealing with here…even the state of Pennsylvania has brought suit (and won) against Fluent/RewardZone!

  2. Curiously you didn’t mention that it was former Deserve to Win guest all star plaintiff atty Adrian Bacon who was on the L side of this matter. The long running case also saw the Friedman/Bacon team lose on both ATDS & DNC 227(c) claims also (YIKES), although they put up a hell of a fight.

    Will Fluent/Reward Zone USA now run rampant with their newfound invulnerability?!?!?!? Smart $$ says, after all the $$ they dropped winning this case – what would you do – DUH. Population of USA prepare yourselves 🙁

    Here’s the original case:
    Psst, Eric…’cough’ link provided ‘cough’

    Here’s your original 2/2022 post also failing to grasp the simple concept that a text is a representation of a PRM albeit sans the ‘audible voice’ component – HELLO!!!! Of course you didn’t advocate for the law(s) to be updated, as they CLEARLY NEED TO BE; but hey, I’ve read the room…

    How about getting Adrian back for his/their side of the story (and your chance to gloat)?

  3. I must correct an error I made in the previous comment. Turns out the Friedman/Bacon (F/B) team did NOT lose on BOTH the 227(b) and 227(c) claims. It was only the 227(b) claim. HUGE.SIGH.OF.RELIEF!!

    So between the 3rd and 4th amended complaints (AC) the claim ranking (?) numbers ‘changed’ and I failed to note said fact, thus thinking all 4 claims were dismissed. So the 3rd AC 227(b) ATDS (claims 1&2) got dismissed. Then F/B filed the 4th AC showing prior claims 3&4 (DNC) now as claims 1&2; Then when F/B filed the appeal (on a 227[b] PRM aspect), the (still) pending DNC claims were stayed, pending the appeal results.

    Clear as mud!?

    “ORDER ON PARTIES’ STIPULATION TO STAY by Judge Stephen V. Wilson. This case is stayed pending resolution of Plaintiff’s appeal of this Court’s judgment for Defendant as to Plaintiff’s first and second claims as alleged in the Third Amended Complaint, by the United States Court of Appeals for the Ninth Circuit. The case is moved to the inactive calendar pending the appeal. The parties are ordered to file a status report within 30 days of a decision by the 9th Circuit. (MD JS-6. Case Terminated) (aco) (Entered: 05/19/2022)”

    Has the world gotten a brief reprieve from the RewardZone USA onslaught of never ending illegal texts? Don’t hold your breath…

    After all, once a serial violator, ALWAYS A SERIAL VIOLATOR

    Waiting to see what they report by Sept 8!

    And of course, my humble apologies, TCPA World


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